Independent Review of the End of Life Choices (Voluntary Assisted Dying) Bill 2020

Prepared by the Tasmanian Policy Exchange at the University of Tasmania

February 2021

Independent Review of the End of Life Choices (Voluntary Assisted Dying) Bill 2020

February 2021 ACKNOWLEDGEMENTS This report has been prepared by the Tasmanian Policy Exchange (TPE) at the University of Tasmania.

The TPE was established by the University of Tasmania as a strategic priority in 2020 to enhance the University’s capacity to make timely and informed contributions to policy issues and debates which will shape Tasmania’s future.

The Review Panel would like to thank all those who made formal submissions to the Review and to colleagues in Victoria, Western Australia and Queensland who shared their expertise and insights at the Review workshop conducted in early February. We would also like to thank the researchers and staff across the University who contributed their time and expertise to the preparation of this report.

THE REVIEW PANEL

Professor Richard Eccleston (Chairperson), Tasmanian Policy Exchange Professor Fran McInerney, Wicking Dementia Research and Education Centre WITH CONTRIBUTIONS FROM

Professor Margaret Otlowski, School of Madeleine Archer, UTAS Science/Law graduate Law Sarah Hyslop, Tasmanian Policy Exchange Associate Professor Jenny Presser, School of Medicine Hollie Jackson, UTAS Arts/Law graduate Contents

TERMS OF REFERENCE...... 3

THE REVIEW PANEL...... 4

A NOTE ON LANGUAGE...... 7

EXECUTIVE SUMMARY...... 9 PART ONE - TASMANIA’S END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: THE CONTEXT

Section 1: Introduction...... 17

Section 2: The historical development of voluntary assisted dying law...... 21

2.1 The history of voluntary assisted dying legislation in Europe, the United States, New Zealand and the United Kingdom...... 21

2.2 The history of voluntary assisted dying legislation in Australia...... 26

2.3 The development of voluntary assisted dying legislation in Victoria, Western Australia and South Australia...... 30

2.4 The history of voluntary assisted dying legislation in Tasmania ...... 30

PART TWO – TASMANIA’S END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: KEY ELEMENTS AND COMPARATIVE ANALYSIS

Section 3: The End of LIfe Choices (Voluntary Assisted Dying) Bill 2020: A summary...... 33

3.1 Objectives and principles...... 33

3.2 Eligibility ...... 33

3.3 Consultation and referral process ...... 36

3.4 Administration of voluntary assisted dying substance...... 38

3.5 Legal and other protections...... 41

3.6 Monitoring and oversight...... 44

Section 4: Tasmania’s End-of-Life Choices (Voluntary Assisted Dying) Bill 2020: Comparative analysis...... 45

4.1 Key elements of the Victorian Voluntary Assisted Dying Act 2017...... 45

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 1 4.2 Comparative VAD tables...... 48

4.3 Tasmania’s End-of-Life Choices (Voluntary Assisted Dying Bill 2020: Comparative analysis...... 54

PART THREE - END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: PUBLIC SUBMISSIONS AND FURTHER CONSIDERATIONS

Section 5: Submissions made to the independent Review Panel...... 59

5.1 Key themes from public submissions...... 60

5.2 Specific amendments proposed in submissions...... 62

5.3 Specific amendments which the Review Panel believe warrant consideration...... 64

Section 6: Insights and further considerations for VAD in Tasmania...... 67

6.1 Considerations for the implementation and administration of voluntary assisted dying...... 67

6.2 Data on voluntary assisted dying access in Victoria and Canada...... 69

6.3 Considerations for people seeking voluntary assisted dying...... 72

6.4 Considerations for health and care professionals...... 74

6.5 Considerations for hospitals and aged care facilities...... 78

6.6 Considerations for palliative care and end-of-life planning...... 81

6.7 Legal considerations...... 84

ENDNOTES ...... 87

REFERENCES ...... 93

APPENDIX 1 Submissions to the Review...... 100

APPENDIX 2 Complete tables 2.2 and 2.3...... 101

APPENDIX 3 Summaries of VAD legislation in comparative jurisdictions...... 103

2 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 The University of Tasmania’s Independent Review of the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020

Terms of Reference

The VAD Review Panel (the Panel) will include health, legal and social sciences expertise and will provide advice to the Tasmanian Government for dissemination to Members of the House of Assembly on specific matters in relation to the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 (‘the VAD Bill’) tabled in the Legislative Council by the Hon Michael Gaffney MLC on 27 August 2020.

The Panel will conduct research and targeted consultation, through a written submissions process, in relation to the proposed VAD Bill in Tasmania and, in order to inform parliamentary debate, provide an independent and objective report to the Tasmanian Government containing:

• A concise summary of the VAD Bill, following amendment by the Upper House.

• Comparison of Tasmania’s Proposed VAD Bill to legislation (including Bills) relating to voluntary assisted dying, however described, in other Australian states and territories and overseas jurisdictions, including but not limited to the processes allowed by the legislation, safeguards and protections for vulnerable people.

• An outline of the historical development of VAD legislation in other Australian jurisdictions in terms of scope and protections.

• Synopsis of relevant reports, analysis and material in other Australian states and territories and overseas jurisdictions pertaining to the implementation and administration of VAD reform.

• Objective analysis of:

₀ the safeguards put in place in other jurisdictions relating to the impact of VAD legislation on medical practice and practitioners, allied health and care professionals, family and social relationships, and provision for and practices in aged care.

₀ the interrelationship between the VAD Bill and existing palliative care and advance care directives in Tasmania and the experience of other jurisdictions in implementing VAD legislation to identify matters that might need to be addressed or monitored should the legislation pass into law.

₀ stakeholder feedback relevant to all matters previously described.

The targeted call for submissions should indicate that submissions are to address the processes allowed by the legislation, safeguards and protections for vulnerable people; and the interrelationship between the VAD Bill and other end-of-life choices.

The Report is to be completed and provided to Government in February 2020

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 3 The Review Panel Professor Richard Eccleston (Chairperson) Professor of Political Science, University of Tasmania

Prof. Eccleston is a specialist in social and economic policy and has worked on a wide range of policy issues, analysing and developing practical evidence-based solutions to some of the most significant policy challenges facing our community. In recent years, Prof. Eccleston has led projects on a wide range of topics from tax reform, housing affordability, migration and preventive health to the future of renewable energy in Tasmania. He was a Fulbright Senior Scholar based in Washington DC in 2014 and was the Founding Director of the Institute for Social Change at the University of Tasmania. Professor Fran McInerney Professor of Dementia Studies and Education, Wicking Dementia Research and Education Centre, University of Tasmania

Prof. McInerney has a professional background in nursing, with higher degrees in social science and public health. She has a wealth of experience in palliative care and end-of-life planning and considers her most important research to be educative. She has been instrumental in creating dementia-centred educational tools in collaboration with the Wicking Centre. She has also developed resources to help those in aged care facilities – staff and families – talk about dementia and death and dying. Her other work includes measurement of dementia literacy and contributions to MOOCS (massive open online courses) about dementia. The University of Tasmania’s Understanding Dementia MOOC has been rated one of the top ten of all MOOCs, and number one of all health MOOCs in the world. Prof. McInerney has been a member of the boards of Palliative Care Australia, Palliative Care Tasmania, and Dementia Australia (Vic). Professor Margaret Otlowski Professor of Law and Deputy Director of the Centre for Law and Genetics, University of Tasmania

Prof. Otlowski is a distinguished legal scholar and a former Dean of the UTAS Law School. Her research focuses on the relationship between law, health and ethics including voluntary assisted dying and end-of-life choices. Current research projects include regulating genomic data and protecting individuals from genetic discrimination. Reviewing laws and recommending change in light of new ethical questions is a fundamental aspect of her work. She has been engaged by Commonwealth and State governments as a consultant and member of various committees, including the NHMRC’s Australian Health Ethics Committee. Prof Otlowski has also been a member of the Tasmanian Anti-Discrimination Tribunal and of the Guardianship and Administration Board and is a Fellow of the Australian Academy of Law.

4 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Associate Professor, Jennifer Presser Academic Lead, Bachelor of Medicine Bachelor of Surgery (MBBS), University of Tasmania

Associate Prof. Presser started her professional life as a research scientist before embarking on a career as a GP. While working in practices around Australia, she continued an interest in teaching and has worked in general practice specialist training as well as with medical students. In clinical practice Prof. Presser has worked in palliative care in the Northern Territory and completed a Clinical Diploma in Palliative Care. She has enjoyed team-based community work with a particular focus on palliative care, sexual health, Aboriginal and Torres Strait Islander health and mental health. Her research expertise is in the areas of mental health in primary care, doctors’ well-being, and training in primary care. Prof. Presser has just completed a term as Chair of the Tasmanian branch of the Royal Australian College of General Practice.

TPE Support Staff

Madeleine Archer – Graduated with a Bachelor of Science and Bachelor of Laws with first class honours in Law from the University of Tasmania in 2020 and worked as a policy intern at the TPE between November 2020 and February 2021. She is currently undertaking the Tasmanian Legal Practice Course.

Sarah Hyslop – Is a policy analyst and project manager at the Tasmanian Policy Exchange and has managed and contributed to a range of significant projects at the University of Tasmania since 2014. She was previously a senior analyst in the Victorian Parliamentary Secretariat.

Hollie Jackson – Graduated with a Bachelor of Arts and Bachelor of Laws with first class honours in Law from the University of Tasmania in 2020 and worked as a policy intern at the TPE between November 2020 and February 2021. She is currently a clerk at Allens Linklaters.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 5

A note on language

Voluntary assisted dying is a complex issue that demonstrates the diversity of views and values held across our community. Given that the language used to describe voluntary assisted dying is itself contested, the Panel considers that it is appropriate to follow the lead of the Victorian Ministerial Advisory Panel (p.7) and clarify the language used in this Report.

The term ‘voluntary assisted dying’ is used throughout the Report to avoid unnecessary stigmatisation of those seeking to access the proposed new regime, and in preference to alternative terms commonly used in other jurisdictions or contexts (such as voluntary euthanasia, assisted suicide, physician-assisted suicide and medical aid in dying). Voluntary assisted dying, or VAD, is now widely used in Australia and is the term used in the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020. Establishing a clear distinction between VAD and suicide (s.138 of the Bill) is important to avoid sections of the Commonwealth Criminal Code Act (1995) relating to the provision of suicide-related material via telecommunications applying to VAD (Section 3.7.2).

Other terms used in the Report and the associated debate include:

Assisted suicide This term is sometimes used to describe interventions where patients are prescribed lethal medications that they self-administer. It emphasises the active choice of the person wishing to die. It is not used as frequently as it once was, however, given the importance of distinguishing between VAD and dying from suicide, the latter of which also involves seeking death, but in the absence of a terminal and/or debilitating disease.

Dying with dignity This is an expression commonly used to describe VAD, particularly in the United States. The Victorian Ministerial Advisory Panel advised against using this term to avoid any suggestion that those who do not access VAD at the end of life (for example, using other forms of health care such as palliative care) may be dying in an ‘undignified’ fashion (p. 7).

End-of-life care Palliative Care Australia describes end-of-life care as care that combines the broad set of health and community services that care for people at the end of their lives. Further, it states that quality end-of-life care involves strong networks between specialist palliative care providers, general practitioners, primary specialists and support care providers and the community (PCA 2018b).

Euthanasia This term means the intentional taking of a person’s life by another person, in order to relive that person’s suffering. It is taken from Greek with eu meaning good and thanatos meaning death. The Human Rights Commission of Australia points out that ‘euthanasia’ can cover an array of practices including passive voluntary euthanasia, active voluntary euthanasia, passive involuntary euthanasia and active involuntary euthanasia.

Because of this lack of specificity, and also because of connections to historic abuse using involuntary euthanasia, the term ‘euthanasia’ is less commonly used now than in the past.

Palliative care This is an approach to health care where a decision has been made not to pursue curative outcomes, usually where there is an acknowledgement that there is no curative treatment available. This approach is based on the premise of neither hastening nor prolonging death, but rather easing suffering.

MAiD In Canada, voluntary assisted dying is described as Medical Assistance in Dying or MAiD. MAiD covers both assisted suicide and euthanasia for persons who meet specified criteria.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 7

Executive Summary In November 2020 the Tasmanian Government asked the University of Tasmania to undertake an Independent Review of the End-of-Life (Voluntary Assisted Dying) Choices Bill (2020) which passed the Legislative Council with amendments on 10 November 2020 (the Tasmanian VAD Bill). The aims of the Review, as set out in the Terms of Reference, are to: • summarise the key elements of the Tasmanian VAD Bill; • compare it with relevant voluntary assisted dying (VAD) regimes in other jurisdictions; and • identify further considerations in relation to the implementation and administration of the Bill, should it pass into law.

The Review Panel has undertaken this work mindful The Panel believes that there are three main aspects of of the fact that VAD raises matters that are central the Bill which will require further consideration in order to peoples’ values and beliefs and provokes strong to ensure that the Tasmanian VAD regime strikes an feelings across the breadth of our community. The Panel appropriate balance and does not lead to unintended appreciates that establishing a legislative framework for consequences: VAD challenges certain long-established norms regarding medical practice and religious beliefs. It also challenges • Whether the safeguards included in the Bill to the prohibition on the intentional ending of human life protect vulnerable persons against exploitation which is a cornerstone of our society and the legal system and abuse are appropriately balanced with that underpins it. the need to establish a VAD system which is accessible to terminally ill people who are suffering The questions raised by VAD and the form that any intolerably at the end-of-life VAD legislation should take require that the Tasmanian Parliament undertake the difficult task of weighing • Whether the proposed regime for organisational up the desirability of promoting individual rights and non-participation (and the obligations on autonomy under circumstances when these rights may organisations that decide not to provide VAD conflict with established social and professional ethics services) balances the need to promote individual and traditions. access to VAD with the ability of organisations to choose whether or not they provide or support Given its Terms of Reference, the Review does not make VAD services recommendations as to the whether the Tasmanian VAD Bill should be amended and/or passed into law. Rather, • The extent to which the Tasmanian VAD Bill the Review aims to provide the Tasmanian Parliament should establish guidelines for professional with analysis and evidence to guide the Parliament’s practice, support services and administrative ongoing consideration of the Tasmanian VAD Bill. procedures or whether this guidance should be This Report is designed to complement the extensive provided by regulation, policy or professional research, engagement and debate that has informed codes the deliberations of the Tasmanian Parliament in recent months. The Panel’s approach has been to outline considerations and policy choices associated with these questions Reflecting this approach, the Report presents a detailed and, where possible, identify evidence-based strategies summary of the Tasmanian VAD Bill and a systematic designed to reconcile competing perspectives and policy analysis of how the Bill compares with VAD legislation in objectives for further consideration by the Parliament. other relevant jurisdictions.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 9 Should the Tasmanian VAD Bill pass into law, it will also Insights from both the written public submissions and be important to regularly evaluate and review both the the Review workshop were extremely helpful and have effectiveness of the VAD regime in providing choices for guided the Panel’s deliberations. Summaries of these those suffering at life’s end and the regime’s broader contributions to the Review process are presented in social, ethical and professional implications. Sections 5 and 6 of the Report.

Insights and learnings from Key features of the End-of-Life Choices other jurisdictions (Voluntary Assisted Dying) Bill 2020

The Tasmanian VAD Bill has benefited from insights and The Tasmanian VAD Bill is a complex and comprehensive learnings from other jurisdictions, both interstate and piece of legislation and, at 170 pages, is longer and more beyond, which have already introduced or drafted detailed than the equivalent Acts in either Victoria (123 VAD legislation. pages) or Western Australia (116 pages).

Section 2 describes how Europe and the United States The objectives of the Tasmanian VAD Bill are clear provided the first examples of VAD regimes and how the and broadly consistent with the legislation already Canadian framework has had the greatest influence on enacted in Victoria and Western Australia, and with contemporary Australian VAD legislation. the draft bill currently before the South Australian Parliament. Common features include: Significantly, Canadian legislation influenced the design of the Victorian Voluntary Assisted Dying Act 2017, which • the principles which inform the operation of each served as the basis for the Western Australian Voluntary VAD regime; Assisted Dying Act 2019 and the VAD bills currently before • the protection from liability each jurisdiction the South Australian and Tasmanian Parliaments. affords to medical practitioners, other health care professionals and pharmacists who do (or do not) While undoubtedly jurisdictions have borrowed from participate in the VAD process; each other – an example of policy learning and transfer – • requirements around medical consultation there are also elements of the legislation in each of these and referral; jurisdictions that are distinct. • stipulations around the handling, transfer, storage and disposal of VAD substances; This is true of the Tasmanian case, and while it is • the mandatory training and qualifications of appropriate that the Tasmanian VAD Bill is largely based participating health practitioners; and on relevant legislation elsewhere, it is important to • the criteria a person must satisfy to be eligible to consider whether legislation from other jurisdictions access VAD. should be adapted to meet our State’s particular needs and concerns. The comparative analysis presented in All Australian VAD regimes also explicitly stipulate, Section 4 is designed to inform this task. either as a legislative eligibility criterion or elsewhere, that a person seeking VAD must have decision-making Public submissions and perspectives on capacity, be acting voluntarily, meet specific residency the implementation and operation requirements and be experiencing intolerable suffering in relation to an illness or health condition expected to cause death within a specified time period. This Report seeks to provide a thorough and timely assessment of the specific provisions of the Tasmanian Section 3 of the Report provides detailed diagrams to VAD Bill currently before Parliament. Given this scope illustrate the process prescribed by the Tasmanian VAD and the associated timeframes, the Panel’s public Bill during the consultation, assessment and referral consultation process focused on written submissions phases of the VAD process (see below and Figure 3.1) and relating to the specific provisions of the draft VAD Bill. the various options for the administration of the VAD The Panel conducted a Review workshop attended by substance (Figure 3.2). professionals directly involved in the implementation, delivery or oversight of VAD services in Victoria and A key policy trade-off which must be addressed in VAD Western Australia. legislation is achieving an appropriate balance between establishing sufficient safeguards to ensure that people cannot be coerced or deceived into VAD while ensuring

10 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 that eligible people are able to access VAD services the profound moral and ethical issues at the core of the and support. debate about VAD. As we have noted, some of the central challenges are: The Tasmanian VAD Bill has numerous provisions to protect individuals and to ensure that access is limited • achieving an appropriate balance between to people who are medically eligible and are acting providing individual safeguards and promoting voluntarily and free from coercion. Indeed, the process access to VAD services; proposed in the Tasmanian VAD Bill for requesting, • ensuring that health and care professionals are assessing eligibility for and accessing VAD, and the free to choose whether or not they participate in safeguards built into this process, are among the most VAD and do not suffer discrimination as a result of rigorous in the world (Section 6.3). this choice; and • developing a framework which provides Reflecting the ethical implications associated with organisations (such as private hospitals and aged VAD, the Report also considers the implications of the care facilities) with a choice as to whether they proposed Tasmanian VAD regime for health and care provide VAD services while ensuring that eligible professionals. individuals seeking VAD have timely access to the VAD services. As in the wider community, health professionals and their professional associations hold a range of views on VAD, To assist Parliament in balancing these competing and this diversity of opinion was reflected in the written objectives the Report identifies four specific aspects of submissions to the Review. the Tasmanian VAD Bill and its implementation that warrant further consideration. Given this diversity of views there is broad support for the principle of protecting the right of any medical Support services and systems practitioner or other health or care professional not to participate in providing VAD services, including on The effectiveness of new and complex policy initiatives, moral or ethical grounds. This principle is reflected in the such as the Tasmanian VAD Bill, should it pass into Tasmanian VAD Bill although additional measures (see law, will depend on both the provisions of the Act and Section 6.4.2) could provide further protection to health its subsequent implementation and administration. practitioners from professional discrimination based on Based on evidence from other jurisdictions and insights whether or not they decide to provide VAD services. from the Review workshop and submissions, it is clear that developing effective VAD support services and Comparative analysis of the End-of-Life systems can promote access and enhance the quality of Choices (Voluntary Assisted Dying) Bill 2020 care by supporting those seeking VAD to navigate the complex process and by providing assistance to health practitioners and organisations who choose to participate Section 4 of the Report provides a comparative analysis in the VAD regime. of the Tasmanian VAD Bill with legislation and bills relating to VAD in other Australian states and comparable VAD support services and systems which are likely to overseas jurisdictions. enhance access include:

This analysis focusses on Victoria, Western Australia and • specialist services to provide information and South Australia and the most relevant international support both for people seeking VAD and for comparisons, being Canada and New Zealand. It identifies health and care practitioners providing VAD five key points of difference between the Tasmanian services. The emerging Care Navigator model Bill and other Australian jurisdictions, each of which is developed in Victoria and being implemented in examined in detail in Section 4.3 and most of which are Western Australia are good examples that warrant designed to improve access to VAD in Tasmania. These consideration in Tasmania; differences are summarised in the table below. • developing consistent and user-friendly data portals to reduce the compliance burden on Considerations for balancing safeguards health professionals and to enhance the efficiency and access of VAD administration. Systems could be shared Achieving a balance between competing objectives is across jurisdictions; always challenging and particularly so when dealing with • providing education and training on the VAD regime to all health professionals and especially to

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 11 Distinctive features of the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020

Issue Distinctive feature of the Tasmanian VAD Bill

Eligible persons can indicate their wishes for how the VAD substance will be administered, with three options provided: private self-administration, administration 1. Choices and autonomy in assisted by the Administering Health Practitioner (AHP) or direct administration by administration method the AHP. In practice, the latter two options will only be open to the person if the AHP considers that private self-administration would be inappropriate.

2. Health practitioners eligible to Both medical practitioners and registered nurses are able to act as Administering administer VAD substance to persons Health Practitioners during the final stage of the VAD process.

Three separate requests must be made for VAD by the person seeking access.

Four separate eligibility assessments are conducted.

The VAD Commission must give permission before the VAD substance can be dispensed or administered to an eligible person. 3. Additional features Two administration methods are supervised by the AHP. Where self-administration is chosen there is no requirement for a 3rd party contact person.

It is prohibited to punish a medical practitioner on the basis of their accepting a request or making a referral pursuant to the Bill.

No explicit waiting period between the first and final requests (although the minimum time in which the VAD Commission must complete different elements of the VAD approval process, together with minimum periods prescribed between the first, second and third requests for access represents a de facto waiting period). 4, Processes present in other regimes, The Primary Medical Practitioner is not required to conduct a ‘final review’ of all of the absent from the Tasmanian VAD Bill documents previously completed in compliance with the VAD process prior to applying to the VAD Commission for authorisation for administration.

No requirement that direct administration (ie self-administration of the VAD substance) be witnessed.

The VAD Commission must keep and disseminate a list of trained and willing medical practitioners and connect persons with an Administering Health Practitioner where their Primary Medical Practitioner is unable or unwilling to act.

Health practitioners are able to discuss VAD with a person, even if that person has not 5. Provisions designed to ensure requested VAD, provided this discussion takes place in the context of a wider discussion equality of access about the person’s treatment options and likely outcomes.

There is no express requirement that medical practitioners who act as Primary Medical Practitioners or Consulting Medical Practitioners have a minimum period of practice in the relevant area.

12 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 those providing or willing to provide VAD services.; These VAD support services and systems are discussed in • promoting both formal and informal collaboration greater detail in Section 6.1 of the Report. and information and resource sharing between jurisdictions, including the development of Reviewing the number of assessments national guidelines for data collection and reporting; and Safeguards proposed under the Tasmanian VAD Bill, if • developing specialist teams providing VAD enacted in their current form, will be among the most support in collaboration with local participating stringent in the world. Specifically, the Tasmanian VAD practitioners. Bill requires four separate assessments of eligibility

The VAD assessment process under the Tasmanian VAD Bill

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 13 during the assessment process which is more than any The role of palliative care and end-of-life planning other jurisdiction. The Review Panel was asked to consider the It is a matter for the Tasmanian Parliament to determine interrelationship between the Tasmanian VAD Bill the appropriate number of assessments or other and existing palliative care and Advance Care Directives safeguards which should be included in the Tasmanian (ACDs) in Tasmania and the experience of other VAD regime, mindful of the trade-offs involved. However, jurisdictions in relation to these matters. one specific amendment which may be considered is whether RNs performing the Administering Health A core element of contemporary palliative practice is to Professional (AHP) role should be required to conduct a adopt a holistic approach to maximise the quality of life further (fifth) assessment of the person’s decision-making and alleviate pain for those suffering from a life-limiting capacity or whether simply requiring the AHP to confirm condition, but without hastening death. Ethically, this the person’s consent would be more appropriate and places palliative practice in a different category to VAD increase the willingness and ability of RNs to act as an and the two approaches are regarded as quite distinct AHP (6.4.4). end-of-life options.

Balancing organisational values and rights to access Those in the palliative care sector who are opposed to VAD argue that high quality palliative care can A significant consideration posed by the Tasmanian VAD significantly reduce or eliminate the need for assisted Bill is establishing an appropriate balance between an dying, while many who support assisted dying advocate organisation’s values and an individual’s right to access for better palliative services but argue that there are some VAD services. The specific question facing Parliament is cases where a person’s suffering cannot be managed at whether the ability of hospitals and aged-care facilities life’s end. not to offer VAD services (and subsequent obligations to persons in their care) should be codified in legislation. Although VAD and palliative care are distinct end-of-life The issue of organisational ‘non-participation’ has been options, research from Palliative Care Australia (2018) discussed in other jurisdictions, analysed in academic and suggests that there has been an increased awareness of, policy literature, debated in the Legislative Council and and investment in, end-of-life care (including palliative raised in 14 submissions to this Review. care) in jurisdictions which have introduced VAD.

The Tasmanian VAD Bill is silent on the issue of Advance care planning (ACP) is a separate process that organisational non-participation, given that there is no allows individuals to express their future wishes in relation requirement under the legislation for either organisations to health care, in order to aid decision making in the (such as hospitals or aged care facilities) or individuals event they lose the capacity to communicate. Under the to offer VAD services. However, the issue is now on the Tasmanian VAD Bill, ACP does not have a role in relation legislative agenda for a number of reasons. There is a to VAD; an individual cannot request VAD via the ACP concern that, in practice, organisational non-participation mechanism. There is a broad consensus that better end- may restrict access to VAD (especially in regional settings) of-life planning (including ACPs) and more timely access or, in cases where people have to be transferred between to palliative care (should it be required) will improve organisations in order to access VAD, that it may increase end-of-life outcomes and that further community the suffering of those persons. Also, some hospitals and engagement and education is needed in these areas. care organisations are seeking greater clarity in relation to their obligations with respect to the provision of services Based on the eligibility requirements in the Tasmanian which are inconsistent with their organisational ethos. VAD Bill and data on people who have accessed VAD in Victoria (Section 6.2), the vast majority of people who end Analysis of the issues relating to organisational non- their lives through VAD will have been suffering from participation is presented in Section 6.5, including the terminal cancer (78%) while those living with dementia key elements of a compromise model which would not would be ineligible (6.2.3). Under a Tasmanian VAD oblige organisations to provide VAD services but would regime, it should be noted that very few people will seek provide greater certainty to patients or residents in non- or be eligible to access VAD at the end of life compared participating organisations who seek to access VAD. A to those who will need access to other end-of-life options particularly challenging scenario is providing options including high quality palliative care. for people who are seeking VAD in non-participating organisations who cannot be transferred without subjecting them to additional suffering.

14 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Outline of the Report raised in submissions from health practitioners it may be worth adopting protections similar to those available in The Report begins (Section 2) by summarising the New Zealand. See Section 6.4.2 and 6.7.2 evolving approaches to VAD both internationally and in Australia. This overview serves as the basis for a more 4. Allowing health practitioners to choose whether detailed summary of the Tasmanian VAD Bill (Section they join the central register of participating 3) and comparative analysis of the VAD Bill with VAD practitioners to be maintained by the VAD Commission laws and policies in other similar jurisdictions (Section 4). As noted, the Panel sought written submissions There are concerns that requiring health practitioners to on the VAD Bill which are summarised in Section 5. join a central register maintained by the VAD Commission In addition to reviewing the specific provisions of the may deter participation in VAD (s.113 c &d of the VAD VAD Bill, the Panel was asked to consider a number Bill). A compromise position which may be considered is of important issues concerning the implementation providing qualified health professionals with a choice in and administration of a VAD regime in Tasmania. This relation to whether they are recorded on a list of qualified analysis is presented in Section 6 and is largely based on and willing providers proposed under the VAD Bill. See written submissions on the VAD Bill and the recent VAD Section 6.4.3 experience in Victoria and Western Australia.

5. Establishing an obligation for non-participating Specific amendments for consideration heath practitioners to refer people seeking VAD

Based on the considerations and trade-offs outlined The Tasmanian VAD Bill does not require a medical above, the Review Panel believes the following specific practitioner who does not accept a patient’s request amendments warrant consideration. to provide VAD services to refer that patient to another practitioner or the VAD Commission. While there are 1. Replacing the final AHP assessment with professional codes in relation to referral practices, given a consent check the precedent in the Tasmanian Reproductive Health Act 2013. Parliament may wish to consider establishing Given the person seeking VAD will have undergone referral obligations in the Tasmanian VAD Bill. See Section four previous assessments by the PMP and CMP, 6.4.2. consideration could be given to replacing the fifth and final assessment to be conducted by the AHP with a consent process. This should increase the number of RNs willing to act as AHPs and should improve access. See above and Section 6.4.4.

2. Transfer and access obligations for non-participating organisations

There is support for clarifying the obligations of non- participating organisations to patients or residents seeking to access VAD. In other jurisdictions these issues are generally managed through policies and guidelines but the legislative approach outlined in the Report may be considered. See above and Section 6.5.

3. Additional protections against professional discrimination

The Tasmanian VAD Bill establishes the right of health practitioners to choose whether or not to provide VAD services (ss. 20-21 of the VAD Bill) but it does not provide legislative protections against professional discrimination which may result from making such a choice. No other Australian jurisdiction provides this protection but it is a feature of New Zealand VAD law. Based on concerns

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 15

PART ONE. TASMANIA’S END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: THE CONTEXT

Section 1:

Introduction The issue of voluntary assisted dying sits at the heart of our values and beliefs as individuals and as a community. It requires us to consider and balance deeply held and potentially conflicting principles concerning the need to protect and preserve life with the desire to prevent suffering and promote individual choice at life’s end. Establishing a law under which a human life can, with full consent and the most humane motivations, be ended is of profound consequence and must be carefully considered. The Panel has been extremely mindful of these moral and ethical considerations as we have reviewed the VAD Bill in accordance with our Terms of Reference.

The experience of and prevailing attitudes towards death other factors have increased life expectancies significantly and dying, both in Tasmania and beyond, have been in Australia in recent years. In 1980, on average, a 65-year- shaped by a combination of medical, demographic and old Australian male would have lived to 78.8 years of societal factors. These include: age yet only 20 years later (in 2000), this life expectancy had increased to 82.4 (the equivalent increase in life • Improved and life-prolonging medical and expectancy for women was 1.5-years to 87.3).1 This trend health care is especially evident in Tasmania, where over 20% of the population is now over 65 years of age. This is 4% above • An ageing population and increasing incidence of the national average and represents a doubling of the chronic disease and age-related illness percentage since the early 1980s (Figure 1.1). • Evolving yet diverse community attitudes and Living longer, more predictable lives is an achievement beliefs in relation to dying, death and end-of-life to be celebrated but, as a population, we are also choices dying more slowly and are more likely to experience Life-prolonging improvements in healthcare among ‘extended periods of deteriorative decline’. This changing

Figure 1.1: Tasmania’s ageing demographic profile, 1976-2019 (source: ABS 2016, ABS 2020a)2

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 17 experience of death and dying has highlighted the timing and content of VAD bills and legislation in need for better end-of-life planning and care. While other jurisdictions. Given the ethical questions under there is broad agreement that more should be done to consideration, community attitudes and beliefs as ensure access to high quality palliative care, the issue of to whether VAD should be made available under specific whether VAD should be available as an option to those circumstances for those suffering at life’s end are suffering at life’s end remains contested among both diverse. However, survey data from a range of sources health professionals and the wider community. suggests that an increasing majority of Australians are supportive of legalising VAD (Figure 1.3). As public Life-prolonging medical treatments and an ageing attitudes have evolved in recent decades, a growing population have changed the end-of-life experience number of Australian and overseas jurisdictions have for many people. However, it is important to note that made provisions for VAD. It is in this context that the majority of those who seek VAD will be suffering the VAD Bill is now before the Parliament of Tasmania. from terminal cancer (76% in Victoria; see Section 6.2) or Death and dying have also shaped the VAD debate and neurodegenerative diseases (16%). (This 16% is unlikely the timing and content of VAD bills and legislation in to include those with dementia as they would not be other jurisdictions. Given the ethical questions under eligible for VAD – see Section 6.2.3). While the prevalence consideration, community attitudes and beliefs as of these conditions increases with age, the age of those to whether VAD should be made available under specific who have accessed VAD in Victoria has ranged from circumstances for those suffering at life’s end are 32 to 100, with an average age of 72.3 While Australia’s diverse. However, survey data from a range of sources population is ageing, fortunately the overall mortality suggests that an increasing majority of Australians from illnesses most common among those seeking are supportive of legalising VAD (Figure 1.3). As public VAD is declining although they are more prevalent in attitudes have evolved in recent decades, a growing Tasmania relative to Australia as a whole (see Figure number of Australian and overseas jurisdictions have 1.2 for representation of the decline in mortality from made provisions for VAD. It is in this context that the VAD cancer). ‘Changing societal attitudes towards death Bill is now before the Parliament of Tasmania. and dying have also shaped the VAD debate and the Sheet 1 Key 170 Australia Tasmania e d 160

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18 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Public Opinion Research on Support for VAD in Australia, 1978-2019 95 Pollster ABC Vote Compass 90 Australia Institute Essential Media Communications 85 Ipsos-Mori Newspoll D

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It is not the role of the Panel to assess the competing 2) by summarising the evolving approaches to VAD both moral and ethical perspectives on end-of-life choices, internationally and in Australia. This overview serves as but rather to analyse how these complex issues have the basis for a more detailed summary of the Tasmanian influenced the design and administration of VAD VAD Bill (Section 3) and comparative analysis of the regimes in other jurisdictions and apply these VAD Bill with VAD laws and policies in other similar lessons in Tasmania. Where possible, based on published jurisdictions (Section 4). The Panel sought written evidence and submissions, we have identified several submissions on the VAD Bill which are summarised in legislative and policy options for the Tasmanian Section 5. In addition to reviewing the specific provisions Parliament to consider together with associated of the VAD Bill, the Panel was asked to consider a number strategies designed to help achieve the objectives of the of important issues concerning the implementation VAD Bill. and administration of a VAD regime in Tasmania. This analysis is presented in Section 6 and is largely based on The primary objective of this Report is to provide a written submissions on the VAD Bill and the recent VAD resource and a reference point for the Tasmanian experience in Victoria and Western Australia Parliament as it continues its consideration of the VAD Bill and its implementation. The Report begins (Section

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 19

Section 2:

The historical development of voluntary assisted dying law Reflecting the medical, demographic and societal trends described in Section 1, there has been a growing debate and an evolving discourse about VAD across a range of jurisdictions since the mid-20th century. The timing and form of legal decisions and new legislation concerning VAD has been shaped by local political factors, legal traditions and prevailing societal norms in the jurisdictions in question. This section summarises the evolution of VAD provisions internationally, from Swiss laws on assisted suicide in the 1940s through to the European and North American jurisdictions (national and sub-national) that have established legislative frameworks for VAD in more recent years. More detailed analysis of the Canadian and New Zealand legislation is presented in Section 4 given their influence on Australian VAD laws, including the VAD Bill currently before the Tasmanian Parliament.

2.1 THE HISTORY OF VOLUNTARY Switzerland to access VAD.8 ASSISTED DYING LEGISLATION 2.1.2 The Netherlands IN EUROPE, THE UNITED STATES, NEW ZEALAND AND THE UNITED An informal system wherein a doctor could lawfully assist KINGDOM dying to prevent serious and irremediable suffering was established in the Netherlands in the early 1970s, although initially the legality of this practice and what 2.1.1 Switzerland constituted ‘medical assistance’ remained unclear. The legal basis for VAD (known as ‘voluntary euthanasia’ in the Netherlands) became more certain in 1984 when the Switzerland is the first jurisdiction which established Dutch Supreme Court ruled that a doctor could not be legal provisions for ‘assisted suicide’. Rather than having convicted for hastening the death of their patients if they specific legislation, this is provided for in Article 115 of the had carefully balanced their duty to alleviate hopeless 1942 Swiss Criminal Code. In contrast to contemporary suffering with their duty to preserve a patient’s life.9 VAD regimes elsewhere in the world, the Swiss model adopts a minimalist and largely rights-based approach In 2002 the Dutch Parliament passed legislation ensuring to accessing VAD by decriminalising VAD where a person that doctors cannot be prosecuted if they act with ‘due providing assistance can demonstrate they are doing so care’ as defined in the statute.10 Unlike the VAD Bill and from unselfish motives. While the Swiss model has few other Australian legislation, the Dutch legislation does formal legislative safeguards, in practice it is regulated not require a patient to be suffering from a terminal by ethical guidelines established by formal right-to-die illness in order to access VAD and justifies this approach associations. These guidelines set out specific criteria on the basis that unbearable suffering with no prospect under which a person can access VAD as well as providing of improvement is not limited to terminal phases of 6 for end-of-life support from experienced volunteers. disease.11 Moreover, the Dutch assisted dying regime can be utilised at a minor’s request if aged between 16 and Perhaps the most controversial and significant element 18 and deemed to have a reasonable understanding of of the Swiss VAD regime is that it is accessible to non- their own interests, with the parents or guardians having residents, resulting in so-called ‘suicide tourism’.7 Well been involved in the decision-making process.12 Further, documented cases of people suffering from terminal a patient does not need to be competent at the time conditions travelling to Switzerland to access VAD have VAD occurs in the Netherlands if a valid advance care highlighted the situation of those suffering at life’s directive was completed at a time when the patient was end and promoted debate about VAD in several other competent.13 countries. A recent high-profile case in Australia involved scientist David Goodall, who at age 104 travelled to

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 21 Figure 2.1: The development of international voluntary assisted dying laws

1942 1973 1984 Switzerland* - Article 115 of Netherlands - Start of Netherlands - On the 28 November Criminal Code criminalises informal and legislated 1984, the Supreme Court ruled that assisted suicide unless the system of VAD. a doctor wouldn’t be convicted for person assisting does so assisting a patient to die if they had from unselfish motives. carefully balanced their conflicting responsibilities towards the law and alleviating suffering.

1997 Columbia - On 20 May 1997, Columbia’s Supreme 1995 1994 Court ruled that doctors are Northern Territory - The NT Oregon - The Dying with permitted to end lives of Parliament passed the Rights Dignity Act was passed patients with acute suffering of the Terminally Ill Bill 1995. on 8 November 1994 by euthanasia. Guidelines for It was enacted on 1 July by ballot initiative. The the practice were not approved 1996 and disallowed by implementation of the Act by the Columbian Congress Commonwealth legislation was delayed by injunction until 20 April 2015. on 27 March 1997. until 27 October 1997.

2001 2002 2008 Netherlands - On 12 April 2001, Belgium - Federal Washington State - The the Parliament formally passed Parliament passed the Death with Dignity Act VAD bill, the Wet toetsing Loi du 28 mai 2002 relative passed by ballot initiative levensbeeindiging op verzoek en a l’euthanasie. This law on 4 November 1994 and hulp bijzelfdoding. The law came came into effect on came into operation into effect on 1 April 2002. 20 September 2002. on 5 March 2009.

2014 2013 2009 Quebec - The provincial Vermont - The state Montana - On 31 legislature passed An Act legislature passed the December 2009, the Respecting the End of Life Death with Dignity Bill Montana Supreme Court Care on 5 June 2014 and on 13 May 2013 with the ruled 5-2 that the state it came into effect on 10 law coming into effect law allows for doctors December 2015. immediately. to prescribe lethal medication.

2015 Canada - Following a decision 2016 2017 of the Canadian Supreme The legislatures of Victoria - The Voluntary Court on 6 February 2015, the California, Colarado, District Assisted Dying Bil 2017 passed Canadian Parliament passed of Columbia, Hawaii, New parliament on 29 November the Medical assistance on Jersey and Maine all 2017. The law came into effect Dying Bill on 17 June 2016. pass VAD into law. on 19 June 2019.

2019 Western Australia - On 10 2019 December 2019, the Voluntary New Zealand - The End of life Assisted Dying Bill 2019 passed Choice Bill passed parliament parliament. The law will come on 13 November 2019 and a into effect after an 18-month referendum on 17 October implementation period, 2020. The Act will come into on approximately 1 July 2021. force on 7 November 2021.

22 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Published data suggest that the Dutch regime is the 2.1.4 Spain most liberal and accessible in the world with rates of VAD in the Netherlands fluctuating between 2.2 and 3.5 While VAD is currently illegal in Spain under article 143 per cent of annual deaths from 1990 to 201014, and 4 per of its penal code, recent legislative developments in cent in 2016.15 As in other jurisdictions, cancer is the most the National Parliament indicate that it may soon be commonly reported condition of those accessing VAD legalised. A bill was introduced into the Lower House early in the Netherlands (4,137 out of 6,091 in 2016); more than in 2020 that enshrines the concept of the ‘right to a good 50% of those accessing VAD were over 70, and 80% died death’, and provides for both physician-administered and in their own homes. self-administered VAD.21 Despite strong opposition from religious groups, on 17 December 2020 the Lower House An independent oversight framework exists in the passed the legislation, with 198 votes in favour and 138 Netherlands through a system of regional review opposed. The Bill passed a preliminary Senate vote 208 committees, as specified in Chapter 3 of the Dutch votes to 140 on 9 February and is expected to become law legislation later in 2021.22

2.1.3 Belgium and Luxembourg 2.1.5 Oregon and other US states

The Belgian Parliament passed VAD legislation (also In the United States, VAD is commonly referred to referred to as ‘voluntary euthanasia’ in Belgium) in 2002 as ‘physician-assisted suicide’ or ‘aid-in-dying’ and is after several unsuccessful attempts in the 1980s and 1990s provided for under the laws of certain states. VAD is still (WA Joint Committee Report).16 Like the VAD regime illegal in a majority of US jurisdictions, with only nine in neighbouring Netherlands, the eligibility criteria in states plus the District of Columbia allowing VAD at the Belgium are broader than other existing Australian time of writing. A further 17 states are actively considering legislation or the Tasmanian VAD Bill. For example, while VAD legislation. The US jurisdictions which have enacted a person seeking VAD must be competent when making VAD laws are Oregon, Washington, California, Colorado, the request, there is no requirement to be competent Vermont, Maine, New Jersey, Hawaii, Montana and the at the time of death, as long as the patient has made District of Columbia. All VAD systems in the US (apart written end-of-life directions when competent requesting from Montana) prescribe similar provisions to those in VAD. Under the Belgian law, the request for VAD must the Oregon model. They allow mentally competent adults be voluntary, considered, repeated, in writing, free from suffering from a terminal illness to request and receive external pressure and of a durable nature.17 The patient a prescription medication to self-administer when they must be in a medically futile condition of constant and choose. All the US statutes require that those using a unbearable physical or mental suffering that cannot be VAD service be a state resident, be a minimum of 18 years alleviated.18 of age, have a life expectancy of six months or less, and have made two oral and one written request to a doctor In 2014 the Belgian regime was extended to allow VAD for the service.23 Most US states with VAD regimes collect for competent terminally ill people under the age of 18 in and publish comprehensive data on those accessing VAD restricted circumstances.19 including patients’ age, underlying health conditions, race, sex, education level, and place of residence. Compliance in Belgium is monitored by the Federal Control and Evaluation Commission. In 2015, 2,022 people Oregon accessed voluntary euthanasia, a slight increase from 1,928 in 2014. Other data for 2014-2015 show that: 62.8% of patients were over 70; no patients under 18 were reported; In 1994, Oregon citizens voted in favour (51.3% in favour) 67.7% were cancer patients; and 44% accessed VAD in of the Dying with Dignity Act by ballot initiative – a their own home.20 direct democracy feature common in the US that allows for public votes on certain legislation or constitutional In February 2008 the Grand Duchy of Luxembourg amendments. The Oregon legislation faced some legal passed a Right to Die with Dignity Law providing challenges including a second ballot initiative to repeal voluntary physician assisted dying to those suffering from the law (in which 60% voted to retain the law and 40% a terminal illness. to repeal it). The Oregon VAD legislation came into operation in 1997.24

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 23 As noted above, the regime in Oregon provides for Provinces and Territories of Canada may create additional physician-assisted death but only with the patient self- health-related laws so long as they do not conflict with administering the lethal medication. Requirements the provision in the federal Criminal Code stating that a include two verbal requests, a written request in the person is not guilty of a criminal offence if they provide or presence of two witnesses, a diagnosis and prognosis assist in providing medical assistance in dying according confirmed by two physicians, a determination that the to the provisions of the law. This flexibility at the sub- patient is competent to make decisions concerning national level in Canada means there is some variation health care, that the physician informs the patient between jurisdictions. For example, Quebec’s VAD law of alternatives, and that physicians report all lethal only allows physicians to administer MAiD and does not medication prescriptions to the Oregon Health Authority. allow self-administration of the lethal medication28. More The Oregon Health Authority publishes an annual report detailed analysis of Canada’s federal VAD legislation (Bill on mandatory data required under the VAD legislation, C-14) is provided in Appendix 3. and these reports provide over 20 years of detailed data. In 2019, 290 people received prescriptions for lethal 2.1.7 New Zealand medications, and 188 people died from ingesting those medications.25 Since the mid-1990s, four separate bills have proposed a framework for assisted dying in New Zealand. All bills Washington have been Members’ Bills (the New Zealand equivalent of Australian Private Members’ Bills). The first bill, the As in Oregon, Washington state’s Death with Dignity Act Death with Dignity Bill 1995, was introduced on 2 August came into force following a successful ballot initiative in 1995 by National MP Michael Laws. The bill’s first reading 2008. The Washington VAD legislation is substantially was defeated by 61 to 29 votes. The second bill, the Death similar to that in Oregon. with Dignity Bill 2003, was introduced on 6 March 2003 by New Zealand First MP Peter Brown and was almost Under Washington’s VAD law, the Washington identical to the Death with Dignity Bill 1995. The 2003 Department of Health releases Death with Dignity Data bill was narrowly defeated on its first reading by 60 to 58 annually. In the most recent available data (from 2018), votes, with one abstention. In 2012 Labour MP Maryan 267 (up from 212 in 2017) patients had prescriptions Street entered the End of Life Choice Bill into the ballot of written and 203 (up from 164 in 2017) died after ingesting Members’ Bills held on 26 July 2012. Street subsequently that medication. These prescriptions were written by withdrew that bill, concerned that as it was an election 158 different physicians and dispensed by 61 different year the bill might not receive the careful attention pharmacies.26 required.29

2.1.6 Canada On 15 of October 2015 ACT MP David Seymour first entered the End of Life Choice Bill into the ballot of Members’ Bills, but it was not drawn from the ballot and Physician-assisted suicide, generally referred to as introduced until 8 June 2017. It passed its first reading (76 ‘Medical Aid in Dying’ (MAiD) in Canada, was legalised to 44 votes) and was referred to the Justice Committee. in the province of Quebec on 5 June 2014. Initially this The Committee inquiry process was comprehensive, conflicted with Canada’s federal Criminal Code, which with 35,000 written submissions, 2,000 oral submissions stated that anyone who assists a person to die is guilty of and a tour by MPs to 14 cities to hear community views. an indictable offence and is liable for imprisonment for a In its final report, tabled in April 2019, the Committee term of up to fourteen years. However, in February 2015 made no recommendations, instead explaining that the Supreme Court of Canada, in the Carter v Canada its membership held a diversity of views and so had case, upheld a declaration of invalidity of the relevant confined itself to reporting on minor, technical and Criminal Code provision on the grounds of inconsistency consequential amendments of the bill only, leaving with section 7 of the Canadian Charter of Rights and debate of the policy matters to the House (NZPS, 2019).30 Freedoms. The Supreme Court suspended the operation The bill passed its third reading on 13 November 2019 of the declaration for 12 months to allow the federal (69 to 51 votes), receiving Royal Assent on 16 November government time to develop and pass legislation making 2019. As stipulated in section 2 of the End of Life Choice MAiD legal.27 On 17 June 2016, a bill legalising MAiD Act, the act was then subjected to a national referendum throughout Canada passed the federal Parliament (Bill on 17 October 2020. A majority (66%) of New Zealanders C-14). voted in favour of the act, thus ensuring it would come into force 12 months after the announcement on 6

24 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Table 2.1: Sub-national voluntary assisted dying legislation in the United States of America

Jurisdiction Date legislation passed Legislative process

Passed by ballot initiative on 8 November. An injunction delayed Oregon 1994 implementation of the Act until 27 October 1997.

Passed by ballot initiative on 4 November and came into effect Washington 2008 on 5 March 2009.

VAD operates under Montana Supreme Court ruling (Baxter v. Montana, 31 December) that no law prohibits a physician from prescribing medication Montana 2009 to hasten a patient’s death who has requested it, provided they are terminally ill and mentally competent.

The Vermont legislature passed the bill on 13 May, making Vermont the Vermont 2013 first state to pass a VAD law through the legislative process. The law came into effect immediately.

Passed by the California legislature on 11 September and came into effect California 2015 on 9 June 2016.

Passed by ballot initiative on 8 November and coming into effect on Colorado 2016 16 December 2016.

Passed by the DC legislature on 15 November and signed into law District of Columbia 2016 on 18 February 2017.

Passed by the Hawaii legislature on 29 March and came into effect Hawaii 2018 on 1 January 2019.

Passed by the Maine legislature on 30 May and came into effect Maine 2019 on 1 January 2020.

Passed by the New Jersey legislature on 25 March and came into effect New Jersey 2019 on 1 August 2019.

November 2020 of the final vote. Therefore, VAD will The United Kingdom is an interesting case in point become available to eligible persons in New Zealand from given its many parallels with Australia. The first attempt 7 November 2021.31 For analysis of New Zealand’s End of to introduce voluntary euthanasia laws in the UK dates Life Choice Act see Appendix 4. back to 1936, with numerous subsequent attempts to introduce laws having been made since the 1960s. In 1994, 2.1.8 The United Kingdom (a countervailing The House of Lords Select Committee on Medical Ethics case) spent a year considering the issue before recommending that the law not be changed to provide for VAD due to the risk that it may ‘weaken society’s prohibition of While the number of jurisdictions around the world intentional killing which is the cornerstone of law and of considering and passing VAD laws has increased in recent social relationships’.32 In 2012 the UK’s non-governmental years, it is important to note that VAD legislation has not Commission on Assisted Dying recommended reforms been implemented in most advanced liberal democracies to ensure that under strictly defined circumstances and, with the exception of Columbia, is not yet legally terminally ill people could be assisted to die.33 The available in developing or middle-income countries. Commission was established to address mounting

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 25 concerns that under British law, family members or carers who assisted those seeking to take their own life On 22 February 1995, the Chief Minister of the Northern (including by travelling to Switzerland to access the Swiss Territory, Marshall Perron (Country Liberal Party) VAD regime) could be liable for prosecution under the introduced the Rights of the Terminally Ill Bill 1995. The UK’s Suicide Act (1961). In 2015, according to Dignitas, bill was referred to a Select Committee on Euthanasia. one person per fortnight was travelling from the UK to The Committee did not make recommendations on Switzerland to access VAD.34 whether the bill should pass or not, but recommended amendments to the bill. After extensive debate, the In an attempt to clarify the situation, the House of Lords bill passed the Territory’s unicameral parliament on 25 ordered that the UK Director of Public Prosecutions May 1995 and on 1 July 1996 the NT became the first publish guidelines as to the circumstances under which jurisdiction in Australia to enact legislation allowing they would seek prosecution.35 There have been a number voluntary euthanasia and also the first jurisdiction in the of subsequent attempts on both sides of politics to world to provide a legislative framework that permitted legalise VAD in Britain. In 2014, Lord Falconer (Labour) the practice. The NT Legislation was also the first to introduced the Assisted Dying Bill 2014-2015 into the allow for VAD by either self-administration or physician- House of Lords. The Bill sought to allow competent administration of the lethal medication.42 The NT Act adults who are terminally ill and are expected to die is now considered relatively short by contemporary within six months to have access to assistance at ending standards, at only nine pages and 21 sections.43 their lives.36 In the following year, Rob Marris (Labour) introduced a bill largely based on that of Lord Falconer’s This NT legislation was only in operation for nine into the House of Commons. That bill was defeated by 330 months before federal MP and Chair of the House votes to 118.37 In 2016, the bill was reintroduced into the of Representatives Legal and Constitutional Affairs House of Lords, this time by Lord Hayward (Conservative). Committee Kevin Andrews (Liberal) introduced into the The bill lapsed when the parliamentary session ended.38 Commonwealth Parliament the Euthanasia Laws Bill Lord Falconer yet again introduced the bill into the House 1996, which sought to disallow the Territories’ rights to of Lords on 28 January 2020. At the time of writing, the enact euthanasia legislation. Despite protest from the Second Reading has yet to be scheduled and the bill is NT and ACT Governments, the Andrews bill passed the still before the House.39 Senate on 24 March 1997, coming into effect three days later. In the nine months that the VAD legislation was in force in the NT, seven people (all of whom had cancer) 2.2 THE HISTORY OF VOLUNTARY applied for VAD under its provisions. Four of these were ASSISTED DYING LEGISLATION IN assisted to die. AUSTRALIA Since the federal prohibition on Territories legislating Attempts to legalise and/or decriminalise VAD in various VAD, there have been six unsuccessful attempts in Australian parliaments have been undertaken for almost the federal Parliament by members of the Australian 30 years. Prior to the introduction of the Voluntary Democrats and the Australian Greens to repeal the Assisted Dying Bill 2017 in the Victorian Parliament, legislation, as well as an attempt in 2015 by a member of 44 57 other VAD-related bills had been introduced into the Liberal Democratic Party to do the same. Australian parliaments.40 In addition to the seven bills attempting to reverse the prohibition on the Territories’ powers to legislate for VAD, 2.2.1 Early Territory reforms and the there have been five state bills attempting to establish Commonwealth response referenda on VAD law reform and another 42 state bills proposing legislation permitting VAD under certain circumstances. However, until the passage of the 2017 The first VAD bill to be introduced into an Australian Victorian bill, all had been unsuccessful.45 White and parliament was in 1993, by Independent Michael Moore, Wilmott (2018) observe that despite this lack of success, in the ACT Legislative Assembly. The bill was referred the number of related bills introduced into Australian to a Select Committee on Euthanasia. The Committee parliaments has been steadily increasing. Of the states, recommended that the bill not be passed due to South Australia has seen the most attempts (20), inappropriateness and being politically inopportune, followed by NSW (9), WA (7), Tasmania (3), Victoria (2) and leading Moore to remove the bill from the Notice Paper. Queensland (1).46 Moore introduced four more bills attempting to legalise or decriminalise VAD in subsequent years, none of which passed.41

26 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 9 September 1996 20 September 2017 18 June 1993 Commonwealth Victoria Northern Territory Euthanasia Laws Voluntary Assisted Rights of the Terminally Bill 1996 (repealed Dying Bill 2017 Ill Bill 1995 the NT legislation)

7 August 2019 2 December 2020 Western Australia South Australia Voluntary Assisted Voluntary Assisted Dying Bill 2019 Dying Bill 2020 (still before Parliament)

27 August 2020 Tasmania End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 (still before Parliament)

Figure 2.3: The development of voluntary assisted dying legislation in Australia

Despite broad-based and steadily increasing public support across Australia for VAD over the period 1975 to 2020 (Figure 1.3), and many attempts to legalise it (Figure 2.3), the major Australian political parties, up until recently, had not developed policy positions on the issue. Prior to passage of the Victorian bill in 2017, the Australian Greens were responsible for 37% of all VAD bills, the Australian Democrats for 18% and Independents for 31%. All these Independent bills were introduced by just two Independents (Michael Moore and Dr Bob Such). Only six VAD bills had been introduced by the ALP and only one by a member of a conservative political party - the successful bill in the NT.47

Stephen Duckett attributes the recent success of the VAD legislation in Victoria to the fact that it was government- supported. This is because government support resulted in a parliamentary inquiry and the work of the Ministerial Advisory Panel, which allowed guidelines and safeguards to be developed effectively and communicated to the community.48

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 27 Table 2.2: A summary of VAD bills in Australian jurisdictions (adapted from Wilmott et al., 2016)

Jurisdiction Bill Date introduced Who introduced?

Voluntary and Natural Death Bill Australian Capital Territory 18 June 1993 Michael Moore (Independent) 1993 (plus 4 more)

Voluntary Euthanasia Bill 1995 (plus John Quirke (Australian Labor South Australia 9 March 1995 19 more) Party

Marshall Perron (Country Liberal Northern Territory Rights of the Terminally Ill Act 1995 22 February 1995 Party)

Criminal Code (Euthanasia) John Bailey (Australian Labor Northern Territory 18 February 1998 Amendment Bill 1997 Party)

Commonwealth Euthanasia Laws Act 1996 9 September 1996 Kevin Andrews (Liberal)

Euthanasia Laws (Repeal) Bill 2004 Lyn Allison (Australian Commonwealth 3 March 2004 (plus 6 more) Democrats)

Voluntary Euthanasia Referendum Elisabeth Kirkby (Australian New South Wales 15 May 1997 Bill 1997 (plus 8 more) Democrats)

Tasmania Dying with Dignity Bill 2009 26 May 2009 Nick McKim (Australian Greens)

Lara Giddings (Australian Labor Party) Tasmania Voluntary Assisted Dying Bill 2013 26 September 2013 Nick McKim (Australian Greens)

End of Life Choices (Voluntary Tasmania 27 August 2020 Mike Gaffney (Independent) Assisted Dying) Bill 2020

Medical Treatment (Physician Colleen Hartland (Australian Victoria 28 May 2008 Assisted Dying) Bill 2008 Greens)

Jill Hennessy (Australian Labor Victoria Voluntary Assisted Dying Act 2017 20 September 2017 Party)

Norm Kelly (Australian Western Australia Voluntary Euthanasia Bill 1997 16 October 1997 Democrats)

Roger Cook (Australian Labor Western Australia Voluntary Assisted Dying Act 2019 7 August 2019 Party)

Note: A more comprehensive version of this table is provided in Appendix 2

28 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Table 2.3: Key reports on VAD in Australia and New Zealand

Jurisdiction Body/Author Date Report

Parliament of Australia, Senate, Medical Services (Dying with November Australia Legal and Constitutional Affairs Dignity) Exposure Draft 2014 Legislation Committee Bill 2014

End of Life Choice Bill: As New New Zealand Parliament, Justice April reported from the Justice Zealand Committee 2019 Committee

The Right of the Individual or the Parliament of the Northern Common Good? Report of the May Northern Territory Territory, Select Committee on Inquiry by the 1995 Euthanasia Select Committee on Euthanasia

Parliament of Queensland, Voluntary Health, Communities, Disability March Queensland Assisted Services and Domestic and Family 2020 Dying Violence Prevention Committee

Parliament of South Australia, Report of the October South Australia Joint Committee on End of Joint Committee on 2020 Life Choices End of Life Choices

Voluntary Assisted Dying: Larissa Giddings and Nicholas February Tasmania A Proposal for Tasmania McKim 2013 (Consultation Paper)

Parliament of Victoria, Legislative Inquiry into end June Victoria Council, Legal and Social Issues of life choices: 2016 Committee Final report

Ministerial Advisory Panel on Victorian July Victoria Voluntary Assisted Dying: Government 2017 Final Report

My Life, My Choice: The Report Parliament of Western Australia, of the Western Australia Joint Select Committee on End of August 2018 Joint Select Committee on End Life Choices of Life Choices

Ministerial Expert Panel on Government of June Western Australia Voluntary Assisted Dying: Western Australia 2019 Final Report

Note: A more comprehensive version of this table is provided in Appendix 2

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 29 2.3 THE DEVELOPMENT OF In South Australia the Joint Committee on End of Life VOLUNTARY ASSISTED DYING Choices Report was tabled in Parliament on 13 October, 2020. The report provided findings on the operation of LEGISLATION IN VICTORIA, voluntary assisted dying legislation and systems in other WESTERN AUSTRALIA AND jurisdictions, but did not make any recommendations.54 SOUTH AUSTRALIA The Voluntary Assisted Dying Bill 2020 was then tabled The 2017 Victorian Voluntary Assisted Dying Act was in both houses of the South Australian Parliament on 2 introduced by the Sex Party and supported by the Labor December 2020: in the Lower House by Labor member Party, which established a comprehensive Inquiry into Hon Susan Close and in the Upper House by Labor End of Life Choices. The government accepted all the Member Hon Kyam Maher. Debate on the bill has been Inquiry’s recommendations, including the proposal to adjourned for the Christmas break and will recommence 55 legalise VAD. In addition to extensive public consultation on 2 February 2021. conducted during the Inquiry, further consultation and analysis were undertaken by a Ministerial Advisory Panel 2.4 THE HISTORY OF VOLUNTARY on Assisted Dying established by the Health Minister. The ASSISTED DYING LEGISLATION IN Advisory Panel was charged with looking at how assisted TASMANIA dying might operate in Victoria, not whether it ought to be established.49 The Advisory Panel’s recommendations The Tasmanian Parliament and its Committees have are seen by commentators as proposing tight controls considered the issue of VAD on three occasions prior to over VAD including on issues such as eligibility of people the current VAD Bill. with dementia. Indeed, the Victorian approach, based In 1996, after the passing of VAD into law in the Northern on the Advisory Panel’s recommendations, has been Territory and the subsequent Commonwealth response, described by some critics as ‘overly bureaucratic’.50 the Tasmanian Parliament referred consideration of The Voluntary Assisted Dying Bill 2017 was introduced VAD to its Community Development Committee. A into the Victorian Legislative Assembly, as a government Mercury opinion poll was conducted at the time which bill, by the Health Minister Jill Hennessy on 21 September asked respondents whether they would like to see 2017. The Premier, Daniel Andrews, claimed that the Tasmania legalise voluntary euthanasia. 54% answered bill was the safest and most conservative in the world in the affirmative, 34% in the negative, and 10.8% were 56 and included all the 68 safeguards recommended undecided. Despite this public support for VAD, the by the Advisory Panel to protect individuals and the Committee reported that it could not recommend community.51 The bill passed the Upper House on 22 VAD on the basis that ‘determination for the need for November 2017 with amendments and was re-introduced legislation on voluntary euthanasia cannot be made on 57 in the Lower House on 28 November 2017, passing on the the basis of a subjective moral choice’. same day. The bill received Royal Assent on 5 December 13 years later, in 2009 Nick McKim, the Leader of 2017 but did not come into force until 19 June 2019. the Australian Greens in the Tasmanian Parliament, In August 2019, the Voluntary Assisted Dying Bill 2019 introduced the Dying with Dignity Bill 2009. The 2009 was introduced by the McGowan Labor Government bill sought to decriminalise voluntary euthanasia in into the Western Australian Parliament. The Parliament Tasmania. The bill was modelled on the 1996 Northern established a Joint Select Committee to inquire into the Territory legislation and allowed a person with ‘profound’ need for laws in WA to allow citizens to make informed suffering from a terminal illness to request assistance decisions regarding their own end of life choices.52 from a medically qualified person to voluntarily end their 58 The Committee recommended that VAD be available life in a ‘humane and dignified manner’. The bill also to eligible persons as it regarded the then current sought to ensure that a medical practitioner assisting lawful options for people experiencing grievous and such a person would not be subject to criminal charges. irremediable suffering were inadequate. The Committee Safeguards in the bill included: that VAD would only recommended that an expert panel be convened to be available to terminally ill people facing intolerable draft the legislation, similar to the process that occurred suffering who had expressed the wish to die; that a in Victoria. The bill passed the WA Parliament on 10 medical practitioner had to be involved; and that the December 2019, making WA the second Australian state patient be examined by three doctors, including a to enact voluntary assisted dying laws. An 18-month psychiatrist and a doctor qualified in the treatment of the implementation period immediately took effect with terminal condition being suffered. commencement expected in mid-2021.53 After tabling the Bill, the Deputy Premier Lara Giddings

30 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 referred the bill to the Joint Standing Committee on Community Development. The Committee was made up of three independent members of the Legislative Council (including Mike Gaffney) and four Members of the House of Assembly: two Labor party members, one Green and one from the Liberal Party. The Committee tabled its report in October 2009 with no recommendations but made a finding that the bill did not provide an adequate legislative framework. Members of the Committee were divided, with some finding the bill had too few safeguards while others believed there were too many safeguards to allow individuals to access VAD.59

Subsequent to the tabling of the Committee’s report, the bill was debated in the Lower House and defeated at the second reading 15 to 7.60

Despite this defeat, Lara Giddings and Nick McKim continued to work on refining the draft VAD legislation.61 In February 2013, Giddings (then Premier) and McKim released a discussion paper. The paper proposed a model with certain eligibility criteria, including: that people accessing the VAD regime must be in the advanced stage of a terminal illness; be aged 18 or older; and be Tasmanian residents. In addition, there was to be a 14-day cooling off period; patients had to be mentally competent; give verbal and written consent; and have been assessed by at least two doctors. If granted access to VAD, patients would be able to self-administer or be administered the lethal medication by a doctor.62

A co-sponsored VAD bill based on this model was introduced to Tasmanian Parliament later in 2013. This bill featured more safeguards than the model proposed in 2009. These included that there must be three requests by the patient and the consent of two GPs for VAD to occur. The 2013 bill failed to pass its second reading vote, but received more support than the 2009 attempt, with 11 in favour, 13 against, and one member (the Deputy Speaker) unable to vote.63

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 31

PART TW0. TASMANIA’S END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: KEY ELEMENTS AND COMPARATIVE ANALYSIS

Section 3:

The End-of-Life Choices (Voluntary Assisted Dying) Bill 2020: A summary The End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 (the initial Draft Bill) was introduced into the Tasmanian Legislative Council by the Hon Mike Gaffney MLC on 27 August 2020. After a lengthy Committee stage, the initial Draft Bill (as amended) passed the Legislative Council on 10 November 2020. This section describes the key elements of the VAD Bill as passed by the Legislative Council, including a synopsis of substantive amendments which were either considered or made during the Committee debate.. This synopsis serves as the basis for the comparative analysis (see Section 4) of the Tasmanian VAD Bill and similar legislation or bills in Victoria, Western Australia, South Australia, Canada and New Zealand.

3.1 OBJECTIVES AND PRINCIPLES The VAD Bill outlines the key objectives and principles religion, beliefs, values and personal characteristics which inform the design and operation of the proposed legislation. The key objectives of the VAD Bill are to: • the need to support informed decision-making

• provide an efficient and effective VAD process • the need to encourage open discussion in relation to care, death and end-of-life decisions • facilitate the making of choices in relation to end- of-life decision-making • the need to provide high-quality care and support therapeutic relationships • protect persons from having their lives ended unwittingly or unwillingly 3.2 Eligibility

• provide protection for registered health Section 10 of the VAD Bill stipulates five eligibility criteria, practitioners who are involved in the VAD process all of which must be met for a person to be eligible to (s. 3(1)) access VAD. These criteria are further explained in Part 3 of the VAD Bill. The VAD Bill sets out 11 principles which must be considered when any person exercises or performs a 3.2.1 Age power or function under the regime proposed in the VAD Persons seeking to access VAD must be 18 years or older. Bill (s. 3(2)). The primary themes which emerge from this list of 11 principles are those of: 3.2.2 Residency

• the equal value of every human life Persons must be either an Australian citizen, or a permanent Australian resident, or someone who • promoting patient autonomy has resided in Australia for three continuous years • the need to ensure equality of access to VAD for immediately prior to making their first request for VAD. all Tasmanians, irrespective of their geographical The person must have also ordinarily resided in Tasmania location, cultural practices or language for at least 12 continuous months immediately prior to making their first request (s. 11). • the need to protect persons against coercion and abuse 3.2.3 Decision-making capacity

• the right of all persons, including registered health A person has decision-making capacity in respect of a practitioners, to be shown respect for their culture, decision made under the VAD Bill when they appear able

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 33 to: understand the information that is required to 3.2.5 Persistent suffering make their decision; remember this information to the extent that they can make their decision; evaluate The person must be suffering intolerably in relation to this information in order to make their decision; and a relevant medical condition (s. 14). Under the VAD Bill, communicate their decision to another, through written, persons suffering from a mental illness or a disability oral, behavioural or other means. The VAD Bill presumes alone are not eligible to access VAD (s. 10(2)). that persons have such decision-making capacity unless A relevant medical condition is defined in s. 6 of the it appears otherwise (s. 12(1)-(2)). Bill and comprises a disease, illness, injury or medical Where the assessing and consulting medical condition that is advanced, incurable and irreversible. practitioners are themselves unable to determine if a This condition must be expected to cause the death of person has decision-making capacity, they must refer the person within six months of their request to access that person to a medical practitioner, psychiatrist or VAD (or 12 months in the case of a neurodegenerative psychologist who has the relevant training to make such disease). Finally, any reasonably available treatment must a determination (s. 12(4). The practitioner may adopt the be considered unacceptable to the person, and there specialist’s determination as their own (s. 12(5)). must be no reasonably available treatment that can cure or reverse the disease or condition and prevent the death 3.2.4 Voluntariness of the person from that condition. For the purposes of the VAD Bill a treatment is only reasonably available where A person acts voluntarily when they are not acting under the person may access it in Australia within reasonable duress, coercion, or because of a threat of punishment or time and at a cost which is not prohibitive. The person unfavourable treatment, or a promise to give a reward or must also consider that their suffering in relation to the benefit to any person (s. 13). relevant disease or medical condition is intolerable. This suffering must be constituted by either actual suffering or the anticipation of suffering arising from the person’s relevant medical condition, any treatment of their condition or any complications likely to arise from such treatment (s. 14(b)).

34 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Legislative Council Committee debate and amendments concerning eligibility

The definition of ‘relevant medical condition’ was determined by an amendment proposed by the Member for Murchison (Hon. Ruth Forrest), passed in an 11:3 division (Legislative Council, Votes and Proceedings, 13 October 2020, p. 429). The Member for Mersey (Hon. Mike Gaffney) proposed two unsuccessful amendments to the definition, which would have inserted the words ‘on the balance of probabilities’ in relation to the expectation of the person to die within six or 12 months and changed the timeframe from six or 12 months to ‘within 2 years’ (pp. 428-429). The Member for Mersey argued that imposing a timeframe conflicts uncomfortably with the inability of medical practitioners to predict precisely when a person’s death will occur (Parliamentary Debates, 13 October 2020, p. 59). However, other members wished to preserve the safeguard of a six- or 12-month timeframe, and to remain consistent with other Australian jurisdictions on the matter (p. 59). The first of the Member for Mersey’s amendments was therefore negatived without debate, and the second was defeated on a division of 10:4. Despite these unsuccessful amendments, the Member for Murchison proposed a second successful amendment to the definition in response to the concerns raised by the Member for Mersey. This amendment allows the Commission to issue exemptions from the requirement that death be expected within six or 12 months, upon application by the person seeking VAD (Legislative Council, Votes and Proceedings, 27 October 2020, p. 479). These amendments are now reflected in section 6 of the Bill.

A successful amendment proposed by the Member for Murchison to remove subclause 142(3) from the draft Bill was passed in an 11:3 division (pp. 474-475). Under subclause 142(3) of the draft Bill, a review was to be conducted to investigate the use of VAD by persons under 18 in other jurisdictions, in order to better understand the processes allowing for this (Parliamentary Debates, 27 October 2020, p. 163). The record of debate indicates that Members were concerned that leaving the clause in the Bill may cause controversy and threaten the success of the whole Bill (pp. 162-170).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 35 3.3 CONSULTATION AND REFERRAL PROCESS

3.3.1 Practitioner roles of the VAD Bill have not been met with respect to that person. If the Commission refuses this authorisation, it The VAD Bill contemplates a range of practitioners must within two business days notify the PMP of the being involved in the VAD process. Parts 5-14 of the refusal, accompanied by reasons for their decision. VAD Bill explain the roles and duties of the Primary Medical Practitioner, the Consulting Medical Practitioner, If the Commission issues authorisation to the PMP and the Administering Health Practitioner in relation to a VAD substance, the PMP may then issue a VAD substance prescription and receive the The Primary Medical Practitioner (‘PMP’) VAD substance from a pharmacist. Prior to filling this A person’s PMP is the practitioner who accepts a person’s prescription, the pharmacist, if they choose to participate, first request to access VAD. This process is described in must discuss the person’s medical condition with the Part 5 of the VAD Bill. A person can make a first request person in order to assess the suitability for use of the VAD orally or in writing to a registered medical practitioner substance in relation to the person (ss. 70-71). when they wish to access VAD and have been given the relevant information. The practitioner must then accept The Consulting Medical Practitioner (‘CMP’) or refuse to accept this request. Acceptance renders the The CMP is the medical practitioner who accepts the practitioner the requesting person’s PMP, though they PMP’s referral, after the PMP has found the person may withdraw from the role at any time. They may also eligible to seek VAD pursuant to the person’s two refuse to accept the request for any reason, including requests for VAD. having a conscientious objection to providing assistance to die, and they are not required to give reasons for their This referral process is elaborated in Part 7 of the VAD decision to accept or refuse (ss. 20-21). Bill. The CMP receives reports and information from the PMP, examines the person making the VAD request, The PMP must determine whether a person is eligible and may refer to another practitioner to assist in their for VAD by meeting all of the eligibility criteria discussed determination of the person’s eligibility. above (3.2) and may refer the person to another medical practitioner to assist with this determination (s. 25). Where the CMP determines that the person is not eligible to access VAD, only one more medical practitioner When 48 hours have passed since the person made their may be consulted (s. 38). The initial VAD process ends first request for VAD, the PMP may hear and determine if two CMPs find that the person is not eligible, but the the person’s second request for VAD. If the PMP finds person may subsequently make a new first request for that the person is eligible to access VAD, the PMP initiates VAD. This subsequent new request cannot be accepted referral to another practitioner (the Consulting Medical by the same PMP within 12 months after the second Practitioner) for a second opinion (see 3.3.2). CMP’s original determination of ineligibility (pt. 9 div. 2). If a CMP determines that the person is eligible for VAD, the After this referral has taken place, and the person has person may then give final permission to their PMP in been found to be eligible to access VAD, the person may relation to their request for VAD (see 3.4 below). make a third and final request for VAD to the PMP (s. 53). This final request cannot be made within 48 hours The Administering Health Practitioner (‘AHP’) of their second request. If the PMP determines that the The AHP is responsible for the administration of the VAD person is eligible to seek VAD, they must next orally substance. The PMP must decide whether they will be or in writing request that the VAD Commission (‘the the AHP, or they can request that the VAD Commission Commission‘) (see 3.6) issues a VAD substance appoints an AHP (pt. 11). The role of the AHP is further authorisation, invoking the Commission’s role of discussed below in 3.4. authorisation in relation to the prescription of a VAD substance. This process is governed by Part 12 of the VAD Bill. Upon receiving this request, the Commission must either issue to the PMP the relevant VAD substance authorisation or refuse to issue the authorisation (ss. 66- 68). The Commission must refuse such an authorisation where it has not received all notices and information in relation to the person seeking VAD (as required under the VAD Bill), or where they suspect that the requirements

36 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Figure 3.1: The End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 consultation and referral process

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 37 3.3.2 Health practitioner qualifications 3.4.1 Types of administration

The PMP and CMP must be authorised medical In the final permission the person is required to provide practitioners, the requirements for which are contained a statement of their wishes for administration of the in s. 9 of the VAD Bill. PMPs and CMPs must be lethal substance. The VAD Bill provides for four types of registered under the Health Practitioner Regulation administration to occur, each explained below. National Law (Tasmania) in the medical profession as a non-student; they must either be a vocationally Private self-administration registered general practitioner or hold a fellowship with A person may indicate in their final permission that they a specialist medical college; they must have relevant wish to self-administer the VAD substance in private. If so, experience in treating or managing the person’s relevant they must make a private self-administration request in medical condition; they must not be a family member the prescribed form to the AHP, signed by the requesting of the person; they must not stand to financially benefit person or a person designated to complete or sign the as a result of the person’s death; and they must have form for that person. Upon receiving this request, if the successfully completed an approved VAD training course AHP is satisfied that the requesting person is capable within the five-year period immediately before the person of self-administering the VAD substance, the AHP makes their first request for VAD. must complete and sign a private self-administration certificate, and within 48 hours provide a copy of this An AHP can be either a medical practitioner or a certificate to the person, the person’s PMP and the VAD registered nurse. A person can be an AHP if they have Commission (pt. 13, div. 3). agreed to be an AHP; they have signed a statutory declaration declaring their having completed an The person seeking to self-administer must then appoint approved VAD training course within the five-year period an adult contact person by completing the prescribed immediately before being appointed as AHP; that they form. If they accept, the contact person has obligations are not a family member of the person; that they have in respect of notifying the VAD Commission and, if relevant experience; and that they do not stand to receive applicable, the police as to the death of the person, and a financial benefit from the person’s death (ss. 62-63). regarding the return of any remaining quantity of VAD 3.4 ADMINISTRATION OF VOLUNTARY substance. ASSISTED DYING SUBSTANCE The requesting person is then supplied with the VAD substance by the AHP and from then on able to Where a person has made a first, second and final administer the substance at a time and place of their request for VAD, 48 hours prior to that person giving final choosing (pts. 13-14). permission to the AHP, the AHP must undertake a further assessment of the person’s decision-making capacity and Self-administration with the Administering the voluntariness of their decision to access VAD, and may Health Practitioner present refer the requesting person to a medical practitioner in If the requesting person wishes to self-administer a VAD order to make that determination (pt. 13). Provided substance, the person must request from the AHP an that the AHP finds the person to be acting voluntarily AHP Administration certificate. Whilst the person is self- and to have decision-making capacity, the AHP must administering the VAD substance the AHP must either be explain to the person a number of pieces of information, in the same room or place as the person or a nearby place including that the requesting person is entitled to receive from which any noise made by the requesting person assistance to die, the consequences of the administration can be heard. The AHP must remain in that close location of the lethal substance, and the need to give final until the person has died or is removed from the room or permission if they wish to continue with VAD (s. 81). place to receive medical treatment as the case may be. The final permission is an instrument in the prescribed form and must indicate the person’s wishes in relation Assisted self-administration to how administration should occur, and what should If the requesting person wishes to self-administer with happen if complications arise during the course the assistance of the AHP, the person must request from of administration where the AHP is present (s. 82). the AHP an AHP Administration Certificate. The VAD Bill provides that such a certificate may only be issued if the AHP is satisfied that self-administration without assistance is inappropriate, taking into consideration any one of the specified considerations which include the person’s ability to both self-administer and digest

38 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Legislative Council Committee debate and amendments concerning consultation and referral processes

The Member for Mersey (Hon Mike Gaffney) proposed an amendment which established section 27(4)(a) and (b) of the Bill, which was passed on an 8:6 division (Legislative Council, Votes and Proceedings, 13 October 2020, p. 431). Under these subsections, when a person’s PMP has decided the person is eligible for VAD, the PMP must, with the person’s consent, inform a family member of the person of all relevant facts about the process of accessing VAD. The PMP must also take all reasonable steps to explain to the family member what arrangements can be made to facilitate self-administration, if the person intends to self-administer. Members who chose not to support the amendment did so because they believed that the amendment was legally unnecessary (Parliamentary Debates, 27 October 2020, p. 40).

The Member for Rumney (Hon. Sarah Lovell) proposed section 17 which prevents certain people from initiating discussions about VAD unless they follow the requirements set out in the subsections (Legislative Council, Votes and Proceedings, 27 October 2020, p. 481). While the Council was divided upon whether to read the clause a second time in a 10:4 division, the amendment was ultimately passed. Once again, Members who voted against the amendment did so because they believed it to be legally unnecessary (Parliamentary Debates, 27 October 2020, p. 210).

A failed amendment was proposed by the Member for Huon (Hon. Bastian Seidel) to allow a person to make a request for VAD by way of audio-visual link. The Council was split with a 8:6 division with the majority rejecting the proposed amendment (Parliamentary Debates, 27 October 2020, p. 31). Those in support emphasised that it would align the VAD consultation process with the existing regulations and standards of good medical practice and would improve access to care, in particular for those patients living in remote areas of Tasmania. The view was also put that while face-to-face appointments are preferable, COVID-19 has highlighted the need for flexible options such as conducting services via audio-visual links. Those who voted against the amendment pointed to: a belief that at least one face-to-face meeting in the process is important for the doctor to make an accurate assessment of eligibility; the difficulty of assessing coercion when a doctor cannot see who else is in the room, and; concerns with the reliability of telehealth (pp. 14-31). .

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 39 Legislative Council Committee debate and amendment concerning institutional

non-participation

A failed amendment, New Clause D [Conscientious objection by entities providing health care inserted], sought to allow for entities providing health care to refuse to authorise or permit the carrying out of any part of the VAD process at their premises. However, the amendment proposed that such entities, which have an objection to VAD, must advise any persons expressing a wish to access VAD of their refusal to authorise or permit any part of the VAD process on their premises and offer to and undertake reasonable steps to facilitate the transfer of any patient who wants to undertake VAD to a health care facility that does not object to VAD (Legislative Council, Votes and Proceedings, 30 October 2020, pp. 496-497). Dr Seidel explained that this amendment was based on a similar clause in the draft VAD Bill for Queensland; and modelled and based on the work by Ben White and Lindy Wilmott from QUT. Dr Seidel argued that without this amendment there would be no chance of access for terminally ill patients if their institution objected to VAD. He continued: ‘The amendment aims to ensure that a person eligible for VAD is able to access it, recognising they may need the cooperation of the current institution to achieve this whilst also respecting the position of an institution which does not want to be involved’ (Parliamentary Debates, 30 October 2020, p. 3).

In the ensuing debate many Members stated that they did not believe this clause was necessary as they could not imagine institutions blocking attempts by residents or patients to access VAD and so were not supportive of the amendment. Indeed, Mike Gaffney remarked that ‘I find even the idea that this supposedly caring entity might wish to impose greater suffering on a person to be totally repugnant’ (p, 4). Others felt that it would encourage facilities to transfer patients or residents to other facilities thus causing more difficulties for patients at an already very difficult time. MLC Meg Webb did not support the amendment because she felt there was a legal assumption built into the proposed clause, which is that entities have the legal right to prevent people accessing legal health services. The amendment was negatived on the voices without going to a division (Parliamentary Debates, 30 October 2020, pp. 1-34).

40 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 the VAD substance, any concerns the person has about practitioner has met with the person in person or by self-administration, and the method of administration way of audio-visual link, through which the practitioner which is suitable for the person (s. 86(5)). For assisted has been able to determine the person’s decision- self-administration, as is the case with self-administration making capacity (ss. 27(1), 34(1), 48(1), 56(1)). Requests with the AHP present, AHPs are also required to remain for VAD which have been made, accepted, refused, or in the same or nearby room or place as the person as for determined must all be notified to the Commission in self-administration. the approved form, and in many cases, noted on the medical practitioner’s medical records in relation to the Direct administration by the Administering person. For example, where a PMP accepts a person’s Health Practitioner first request for VAD they must, within seven days, notify the person of the acceptance of the request, notify the If the requesting person wishes for the AHP to directly Commission in the approved form of the acceptance, and administer to them a VAD substance, they must apply note the acceptance on the person’s medical records (s. to the AHP for an AHP Administration Certificate. The 23). A person’s requests must be signed by the person circumstances under which the AHP can issue this or by a designated adult where the person is not able certificate are the same as those outlined for assisted to sign or complete the instrument themselves. The self-administration, as are the AHP’s obligations after person’s signature on their second request for VAD must completion of the administration of the VAD substance. be witnessed by at least two adults. Only one of these 3.4.2. Planning for complications in witnesses can be a family member of the person, a person the voluntary assisted dying process who knows or believes that they stand to financially benefit from the person’s death, the person’s residential In the final permission the requesting person must care provider or agent thereof, or a resident of the facility indicate whether, if complications arise in the course in which the person making the request resides (s. 31). of administration by the AHP or self-administration assisted by the AHP, they wish for the AHP to administer Registered health practitioners are not able to initiate to them a substance that will painlessly hasten their discussions with a patient which relate to the VAD death, or whether they wish the AHP to take life- process unless, in this discussion, they also inform the preserving action (s. 82(3)). Should such a complication person about the palliative and non-palliative treatment occur, the AHP must follow the directions contained in options open to them, and the likely outcomes of those the final permission (s. 88). treatments. Health practitioners who are not medical practitioners may also only initiate a discussion about 3.5 LEGAL AND OTHER PROTECTIONS VAD if they inform the person that a medical practitioner would be the most appropriate person with whom to 3.5.1 Key safeguards for the person discuss VAD and their care and treatment options. The Bill makes clear that this prohibition does not prevent a Consistent with its overarching objectives and principles, registered health practitioner from providing information the Bill includes many protections for persons seeking to about the VAD process at a person’s direct request (s. 17). access VAD. Finally, in Part 18 the Bill criminalises certain Two registered medical practitioners are required to instances of conduct in relation to the falsification of certify that the person is eligible to access VAD, a person records and statements, unfaithful representations, must make three formal requests for VAD as well as undue influence and dishonest inducement to use a VAD giving final permission, and the person’s decision-making substance. capacity and voluntariness is assessed on five separate occasions (three times by the PMP, once by the CMP, 3.5.2 Protections for health practitioners and once by the AHP prior to the person giving the final permission). Authorised medical practitioners must Participation of health practitioners in the VAD process have the relevant qualifications, they must not be a is entirely voluntary. Medical practitioners can refuse family member of the person, and they cannot know or to accept a person’s request for VAD or a referral to believe that they stand to receive a financial benefit from determine a person’s eligibility for VAD for any reason, the person’s death (see s. 9 of the Bill). which may include their conscientious objection to providing assistance to die, and medical practitioners The VAD process must be well-documented. Requests are not required to provide reasons for refusal to for VAD made by the person must be made orally or in participate. Similarly, pharmacists can refuse to supply a writing, and any determination of a person’s request VAD substance (s. 71(3)). PMPs, CMPs and AHPs can cease cannot be made by a medical practitioner unless that to participate in the VAD process at any stage, and Part

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 41 Figure 3.2: The End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 administration process

42 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 16 of the Bill makes provision for the eventuality that such 3.5.3 Protections for others practitioners may leave their roles. The VAD Bill contains requirements as to how the VAD Health practitioners who act in good faith and without substance is to be stored, both by the PMP and by negligence pursuant to the VAD Bill do not incur civil persons intending to self-administer the substance. PMPs or criminal liability, nor face professional disciplinary who receive a VAD substance pursuant to authorisation consequences, even where their actions or assistance from the Commission and the dispensing of the in the VAD process may otherwise constitute an substance by a pharmacist have obligations in relation offence. Medical practitioners are also not liable to any to how the substance is stored. PMPs must ensure that punishment, sanction or censure by any person or body the substance is contained in a locked receptacle that is for having made or accepted a referral in relation to the not readily accessible by any other person, and located VAD process. Broad legal protection is given to registered at the PMP’s usual place of employment as a medical health practitioners, registered nurses and Ambulance practitioner. These same obligations apply to an AHP Service officers who, in good faith, do not administer when they are in possession of the VAD substance. life-sustaining treatment to a person who has not Exceptions are only provided in cases where the PMP requested it, believing that the person is dying after the is transporting the VAD substance to another place for administration of a VAD substance in accordance with provision or administration to the requesting person. the VAD Bill. Such persons are not liable under Tasmanian Provisions are made in the VAD Bill for the return of criminal or civil law, or under any code of conduct, nor the VAD substance to a pharmacist in situations where may they face professional disciplinary consequences (pt. the PMP or AHP possesses the VAD substance and the 19). substance is no longer required. (pt. 12, div. 3).

Only where registered medical and health practitioners Where a person is to self-administer the VAD substance, take actions under the VAD regime in bad faith or that person must ensure that the VAD substance is kept negligently may their actions be capable of triggering in its original packaging and in a locked receptacle, and professional disciplinary consequences for the purposes that the substance is not readily accessible by any other of the Health Practitioner Regulation National Law person. Persons who wish to self-administer must also (Tasmania). nominate an adult contact person whose duties include returning the remaining VAD substance to the person’s

Legislative Council Committee debate and amendments concerning administrative process and legal protections

The Member for Rumney (Hon. Sarah Lovell) successfully proposed an amendment which is now reflected in section 15 of the Bill (Legislative Council, Votes and Proceedings, 13 October 2020, p. 432). Section 15 operates to prevent certain persons – such as family members – from communicating on behalf of the person accessing VAD. It is designed to guarantee that the practitioners who communicate with persons accessing VAD can be confident that the person is acting entirely voluntarily Parliamentary( Debates, 13 October 2020, p. 131). However, a subsequent amendment was made to section 15 by the Member for Murchison (Hon. Ruth Forrest). This later amendment permits the Commission to grant exemptions to the prohibition in section 15, allowing a person otherwise barred by section 15 to communicate with medical practitioners on behalf of the person accessing VAD (p. 134). The Member for Murchison’s amendment arose out of a concern that some circumstances may make communication between medical practitioners and family members necessary (p. 134).

More generally, several amendments were made to strengthen provisions preventing persons involved in the VAD process, such as medical practitioners and family members, from gaining undue financial benefit (Legislative Council, Votes and Proceedings, 13 October 2020, p. 431). There were also amendments to ensure that all involved medical practitioners are independent from each other and the persons accessing VAD during the referral and consultation processes. The purpose of these amendments was to ensure greater safeguards against potential abuse of the legislation.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 43 AHP after the person’s death and ensuring that the of the regime; and establishing and maintaining lists of VAD substance is kept in a locked receptacle that is not appropriately trained and willing medical practitioners, readily accessible by any other person whilst they have registered nurses and pharmacists. The VAD Commission possession of it (ss. 85, 92). may, with consent, disseminate the contact information of these practitioners who are able and willing to be The VAD Bill also affords protection to persons who, in involved in the VAD process (s. 113). good faith, assist a person or who are present in relation to the VAD process, by providing that such persons do not The VAD Commission is also tasked with reviewing incur any criminal liability (s. 132). the exercise of powers under, and compliance with, the VAD regime and is empowered to investigate 3.6 MONITORING AND OVERSIGHT and/or communicate to the relevant authorities any concerns about non-compliance or the operation of The Voluntary Assisted Dying Commission (VAD the VAD regime more generally. It is also the role of Commission) is established in Part 17 of the VAD the VAD Commission to determine the substances Bill. It consists of a Chairperson of the Commission that will be VAD substances and to approve training and Executive Commissioner, a Deputy Executive courses which PMPs, CMPs and AHPs may undergo in Commissioner and at least three other members as order to be qualified to participate in the VAD necessary for the VAD Commission’s functioning (s. process. The VAD Commission must provide an initial 110). The members of the VAD Commission cannot report to the Minister on the operation of the VAD perform a function in relation to a person who is a regime during its initial six months and provide to family member, or in situations where a financial the Minister annual reports containing details of the interest may be affected by the exercise of the member’s administration and operation of the regime. The functions. Minister must table these reports in each House of The VAD Commission has a dual primary function: to Parliament within five sitting days of receipt (ss. 116, 142, regulate and to review the VAD regime’s operation. The 119). VAD Commission’s primary regulatory functions include In addition to the substantive provisions of the VAD monitoring the operation of the regime; disseminating Bill, section 144 establishes a process whereby the information on the Commission and the operation of the Governor, acting on the advice of the Minister, may make Bill; collecting statistical data in relation to the operation regulations for the purpose of the Act.

Legislative Council Committee debate and amendments concerning monitoring and oversight

An amendment to section 113 added a subclause which aims to guarantee the independence of the VAD Commission (Legislative Council, Votes and Proceedings, 27 October 2020, p. 470). Subclause 113(5) clarifies that members of the Commission are not subject to the control of the Minister, and that they may not exercise their power in relation to any family member, or where the exercise of power may be affected by financial or other interests. Other successful amendments established the composition of the Commission, the appointment of its members, the entitlements of the members and the procedures for meetings of the Commission (Legislative Council, Votes and Proceedings, 29 October 2020, pp. 494).

44 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Section 4: The End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 in comparative perspective As required by our Terms of Reference, this section provides a systematic comparison of Tasmania’s VAD Bill with legislation and bills relating to VAD in other Australian states and comparable overseas jurisdictions. Given existing Australian VAD legislation and bills are based on the Victorian Voluntary Assisted Dying Act 2017, Section 4.1 summarises key elements of the Victorian law. Summaries of the subsequent Western Australian Act, the VAD Bill currently before the South Australian Parliament and the key elements of the Canadian and New Zealand legislation are provided in Appendix 3.

Detailed summary tables describing key similarities and • the need to support therapeutic relationships differences between the Tasmanian VAD Bill and the five between persons and their health practitioners jurisdictions listed above are presented in Section 4.2. This comparative analysis focuses on the six key elements of • encouragement of open discussions around death VAD legislation identified in Section 3, namely: and dying

• The objectives and principles of the legislation • the provision of support for persons in conversation with others about their treatment • The eligibility criteria for accessing VAD and care preferences

• The elements of the consultation and referral • the entitlement of all persons to genuine choices process in relation to treatment and care

• The procedures for the administration of the VAD • the need to protect individuals from abuse substance • the right of all persons, including health • The legal and other protections within the VAD practitioners, to be shown respect for their culture, legislation beliefs and values

• The monitoring and oversight provisions 4.1.2 Eligibility

The Section concludes (4.3) with a more focused analysis The eligibility criteria for accessing voluntary assisted of the key differences between Tasmania’s draft Bill and dying in Victoria are contained in Part 2 of the Victorian interstate VAD legislation. . Act. They are that:

4.1 KEY ELEMENTS OF THE VICTORIAN • The person must be 18 years or older VOLUNTARY ASSISTED DYING ACT 2017 • The person must be either an Australian citizen 4.1.1 Objectives and principles or a permanent resident, who has been ordinarily resident in Victoria for at least 12 months prior to The Victorian Act sets out a list of 10 principles which making the first request must be considered by any person exercising a power or performing a function under the Act (s. 5). They include: • The person must have decision-making capacity in relation to VAD, which is the capacity to • that every human life has equal value understand, retain, weigh and communicate relevant information. Persons are presumed to • the need to respect persons’ autonomy have such capacity (s. 4) • a person’s right to be supported in making • The person must be diagnoosed with an decisions about their medical treatment options incurable, advanced and progressive illness which including palliative care is expected to cause death within six months, or 12 • the need to provide persons approaching the end months in the case of a neurodegenerative illness. of life with quality care This illness must be causing suffering which

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 45 cannot be tolerably relieved. Persons are not disease, illness or medical condition of the person seeking eligible solely because they have a disability or to access VAD (s. 10), and both must have completed have been diagnosed with a mental illness (ss. approved assessment training. 9(2)-(3)) 4.1.4 Administration of VAD Substance 4.1.3 Consultation and Referral Process If the Coordinating Medical Practitioner has certified Practitioner Roles in a final review form that the request and assessment process has been completed in accordance with the The Victorian Act makes provision for a minimum Act, they may apply to the Secretary (the Head of the of two medical practitioners to participate in the Department of Health and Human Services) for a VAD VAD process. A person’s Coordinating Medical permit for the person pursuant to Part 4 of the Act. Practitioner is the practitioner that accepts their first request for VAD and conducts the first assessment Self-administration is the default administration of the person’s eligibility for VAD (pt. 3, div. 3). The procedure under the Act, and the Coordinating Medical Coordinating Medical Practitioner may then Practitioner may apply for a practitioner refer the person to the Consulting Medical administration permit only if satisfied that the person Practitioner who conducts the second assessment is physically incapable of the self-administration or of the person’s eligibility pursuant to (pt. 3, div. digestion of the VAD substance. The Secretary may 4). Both practitioners must find the person refuse a permit if they are not satisfied that the request eligible for VAD provided the requesting person and assessment process was properly complied meets the eligibility criteria, understands important with (ss. 48-49). The issuing of a self-administration information relating to VAD, is acting voluntarily and permit authorises the Coordinating Medical Practitioner without coercion, and that the person’s request for to prescribe and supply the VAD substance to the VAD is enduring. Further, both practitioners must person, and the person to obtain, possess, store, and refer the person for a specialist’s opinion if they are self-administer the substance (s. 45). Under the Act, unable to determine the person’s eligibility (ss. 18, 27). If self-administration of the VAD substance does the Consulting Medical Practitioner finds the person not need to be supervised by a medical practitioner. A ineligible for VAD, the Coordinating Medical Practitioner practitioner administration permit authorises the may refer the person to another registered medical Coordinating Medical Practitioner to prescribe the VAD practitioner for a further consulting assessment (s. 31). substance, to receive a request for administration from the person in the presence of an eligible witness, and If both the Coordinating and Consulting Medical to administer to the person the substance, also in the Practitioners find that the person is eligible to access presence of a witness (s. 46). VAD, the person seeking VAD may then make a written declaration, appropriately signed, witnessed, 4.1.5 Legal and other protections and made in the prescribed form (pt. 3, div. 5). Next, the person can make a final request for VAD to the Under the Victorian Act, registered health Coordinating Medical Practitioner, who then conducts a practitioners are prohibited from initiating a discussion final review of all the forms completed pursuant to the with a patient which is in substance about VAD (s. eligibility and assessment process. For the VAD process 8). Further, persons who seek access to VAD are able to continue, the final review must culminate in the to withdraw at any time, and the minimum time in Coordinating Medical Practitioner certifying that the which the process can be completed is 10 days (s. request and assessment process has been completed as 38). Finally, the VAD process is heavily documented, required under the Act, and the provision of the entirety with prescribed forms required to be completed of this documentation to the VAD Board (pt. 3, div. 6). and submitted to the VAD Board, requirements around who can witness documents, and requirements about Practitioner Qualifications the signing of these documents. To support many of Both the Coordinating and Consulting these provisions, the Act criminalises conduct that is non- Medical Practitioners must hold a fellowship with a compliant with the Act, including the failure of a contact specialist medical college or be a vocationally registered person to return unused VAD substance after a person’s general practitioner. One of them must have practised death, and the failure to give copies of documents to the as a registered medical practitioner for at least five years VAD Board (pt. 8). after completing either the fellowship or after having The participation of registered health practitioners in become vocationally registered. At least one of the VAD process is entirely voluntary. Practitioners are them must have relevant expertise and experience in the able to withdraw at any time, and they can refuse

46 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 requests and referrals on grounds including their having a conscientious objection to providing assistance with VAD (s. 7). Specific protection from liability is afforded Key resources to registered health practitioners and others who in good faith and without negligence perform an act or • Ministerial Advisory Panel on Voluntary Assisted omission under the Act, and is extended to ambulance Dying 2017, Final Report paramedics who are present after administration of a • Parliament of Victoria Legislative VAD substance (pt. 7, div. 2). Council 2016, Inquiry into end of The Act contains provisions which relate to the secure life choices, Final Report. storage and handling of the VAD substance. Self- • White, B, Del Villar, K, Close, E & Willmott, L 2020, administering persons must appoint a contact person ‘Does the voluntary assisted dying act 2017 (Vic) to handle any remaining or unused VAD substance reflect its stated policy goals?’, University of New (s. 39), and pharmacists must comply with prescribed South Wales Law Journal, vol. 43, no. 2, pp. 417- labelling requirements for the VAD substance. Prior to 451. administration, persons must store the substance in a locked box (pt. 5, div. 1). • Rutherford, J 2020, ‘Doctors and the voluntary assisted dying act 2017 (Vic): knowledge and

4.1.6 Monitoring and oversight general perspectives’, Journal of Law and The Victorian Act establishes the VAD Review Board, Medicine, vol. 27, no. 4, pp. 952-966. which reviews and reports to Parliament on the • McDougall, R & Pratt, B 2020, ‘Too much safety? Act and can refer any issues to relevant persons and Safeguards and equal access in the context organisations including the police, the State Coroner, and of voluntary assisted dying legislation’, BMC AHPRA (s. 93). The Secretary (the Head of the Department Medical Ethics, vol. 21, no. 1, pp. 1-10 of Health and Human Services) determines applications for VAD permits and can refuse such permits on the basis that the requirements of the Act have not been complied with (s. 49).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 47 4.2 COMPARATIVE VAD TABLES - PRINCIPLES

Table 4.1: Comparative analysis of the objectives and principles of voluntary assisted dying legislation.

AUSTRALIA INTERNATIONAL

Western South Tasmania Victoria New Zealand Canada Australia Australia Jurisdictional End of Life Comparison: Voluntary Voluntary Voluntary Choices End of Life Medical Key Elements Assisted Assisted Assisted (Voluntary Choice Assistance in Dying Act Dying Act Dying Bill Assisted Dying) Act 2019 Dying Act 2016 2017 2019 2020 Bill 2020

Principles

The equal value of human life Y Y Y Y N† N‡

Patient autonomy Y Y Y Y N† N‡

The need to support Y Y Y Y N† N‡ informed decision-making

The need to provide high quality care and treatment Y Y Y Y N† N‡ to persons at end of life

The need to support and maintain a therapeutic Y Y Y Y N† N‡ relationship between the person and their medical practitioner

Need to support and encourage openness in discussing death, dying, individual preferences Y Y Y Y N† N‡ and treatment options with family, medical practitioners and others

The entitlement of persons to genuine choices about their care, treatment and end of life, Y* Y Y* Y N† N‡ having regard to their culture and language

Ensuring equal access for both regional and Y N Y** N N† N‡ metropolitan residents

Protection of persons against Y Y Y Y N† N‡ coercion and abuse

The right of all persons to be shown respect for their culture, Y Y Y Y N† N‡ religion, beliefs, values and personal characteristics

* The Tasmanian Bill and Western Australian Act emphasise a person’s entitlement to genuine choices about their care, treatment and end of life, irrespective of where the person lives in the State. ** Part 10 of the Western Australian Act provides that the Chief Executive Officer of the Department of Health must issue an access standard setting out how the state intends to facilitate access to VAD for persons ordinarily resident in Western Australia, including how the state intends to facilitate those persons’ access to the services of medical practitioners and other persons who carry out functions under the Act and prescribed substances and information about accessing VAD. This access standard must be published on the Department’s website. † The New Zealand Act does not contain a list of principles, rather it provides its purpose is to give persons who have a terminal illness and who meet certain criteria the option of lawfully requesting medical assistance to end their lives and to establish a lawful process for assisting eligible persons who access that option. ‡ The Canadian legislation also does not contain a list of principles. The legislation provides that its purpose is to amend the Canadian Criminal Code in order to create new offences for failing to adhere to the safeguards within the Act, to facilitate the collection of data for the purposes of fine-tuning the regulation of assisted dying in Canada and to strictly determine the eligibility for people who wish to access assisted dying.

48 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 4.2 COMPARATIVE VAD TABLES - ELIGIBILITY

Table 4.2: Comparative analysis of the eligibility provisions in voluntary assisted dying legislation

AUSTRALIA INTERNATIONAL

Tasmania Victoria Western Australia South Australia New Zealand Canada Jurisdictional Comparison: End of Life Choices Voluntary Voluntary Voluntary End of Life Medical Key Elements (Voluntary Assisted Assisted Dying Assisted Dying Assisted Dying Choice Assistance in Dying) Bill 2020 Act 2017 Act 2019 Bill 2020 Act 2019 Dying Act 2016

Eligibility Criteria

Person must be 18 years or older Y Y Y Y Y Y

Person must be either a citizen or permanent resident of, and ordinarily resident in, the Y* Y Y Y Y N*** relevant jurisdiction immediately prior to making the request

Person must have decision- making capacity Y Y** Y** Y** Yˆ Y¤

A person has decision-making capacity when they can understand, use or evaluate Y Y Y Y Y Y and communicate information relevant to their decision

Persons must be † † † acting voluntarily Y N Y N N Y

Person must be suffering from an advanced and incurable illness which is expected to Y±Δ Y± Y± Y± Y N~ cause death within 6 months

Persons are not eligible for VAD only because they have a Y Y Y Y Y N‡ mental illness or a disability

The person must The person’s The person’s The person’s The person must The person’s consider their illness must be illness must be illness must be be suffering from illness must be Further information suffering intolerable, causing suffering causing suffering causing suffering a terminal illness causing them on the requisite and suffering may be to the person that to the person that to the person that which is causing enduring physical illness constituted by actual cannot be relieved cannot be relieved cannot be relieved unbearable suffering or psychological or anticipated suffering in a manner they in a manner they in a manner they that cannot be suffering that is arising from the consider tolerable. consider tolerable. consider tolerable. tolerably relieved. not tolerable and illness, its treatment or The person must cannot be relieved complications arising further be in an under conditions from its treatment. advanced state of that they consider irreversible decline in tolerable. physical capability.

* The Tasmanian Bill provides a third residency option. A person can also have resided in Australia for three continuous years prior to making their first request for VAD. ** The Victorian and Western Australian legislation and South Australian Bill provide that a person must have decision-making capacity “in relation to VAD.” † The Victorian and New Zealand legislation and South Australian Bill do not enumerate the person’s voluntariness as a specific eligibility criterion, though voluntariness is assessed at several points during the consultation and referral processes. ˆ In the New Zealand Act, the person must be competent to make an informed decision about assisted dying. *** In Canada, a person must be eligible for government-funded health services. ¤ In Canada, the person must provide informed consent to receive medical assistance in dying, after being told about alternative methods to relieve their suffering by medical practitioners assessing eligibility. ± In Tasmania, Victoria, Western Australia and South Australia, where the person has a neurodegenerative condition, this must be expected to cause death within 12 months. ~ In the Canadian legislation, there is no imposition of a period in which death is expected. Rather, the person’s natural death has become reasonably foreseeable. Note, The Canadian Parliament is considering broadening eligibility criteria under Bill C-7. Δ Under the Tasmanian Bill, the Commission, upon the application of a person, may determine that the person is exempt from the time requirement (6 months or 12 months in the case of a neurodegenerative illness) if the Commission is satisfied that the person’s prognosis is such that this requirement should not apply.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 49 4.2 COMPARATIVE VAD TABLES - CONSULTATION AND REFERRAL

AUSTRALIA INTERNATIONAL

Tasmania Victoria Western Australia South Australia New Zealand Canada Jurisdictional Medical Comparison: End of Life Choices Voluntary Voluntary Voluntary End of Life Assistance Key Elements (Voluntary Assisted Assisted Dying Assisted Dying Assisted Dying Choice in Dying Dying) Bill 2020 Act 2017 Act 2019 Bill 2020 Act 2019 Act 2016

Consultation & Referral Process

Number of requests person must make 3 2 2 2 1 1× for VAD

Requests for VAD must be made by

the person in person, † and cannot be made Y Y Y Y Y Δ by another on the person’s behalf

At least one of a person’s requests for VAD or declarations in relation to their wish Y Y Y* Y* Y* Δ to access VAD must be in writing and signed by the person

Second opinion on person’s eligibility is required through Y Y Y Y Y Δ referral to a consultant medical practitioner

Minimum number of eligibility assessments 4 2 2 2 2 2 conducted

Participating health practitioners must have undertaken Y Y Y Y N Y approved VAD training

Medical practitioners must refer the person for a specialist opinion Y Y Y Y Y Y if unable to determine eligibility

The qualifications of health practitioners who can participate in Y Y Y Y Y Y the VAD process are prescribed

Health practitioners who conduct person’s eligibility assessments Y Y Y Y Y Y must be medical practitioners

Set waiting period between the first and N˜ Yˆ Yˆ Yˆ N N** final requests

First request made First request made First request made First request made to Person advises their Δ to Primary Medical to Coordinating to Coordinating Coordinating Medical Attending Medical Brief summary Practitioner (‘PMP’), who Medical Practitioner Practitioner who Practitioner who Practitioner of their of the consultation conducts first assessment who conducts first conducts first eligibility conducts first eligibility wish for VAD and signs and referral of eligibility. Second assessment of assessment. Person assessment. Person relevant form. Attending process request made to the eligibility. Person referred for a second referred for a second Medical Practitioner PMP followed by another referred for a second opinion to Consulting opinion to Consulting gives first opinion on eligibility assessment. opinion to Consulting Medical Practitioner Medical Practitioner person’s eligibility Person then referred Medical Practitioner, who conducts eligibility who conducts eligibility and requests the contact for second opinion to who conducts assessment. Person assessment. Person details of an independent Consulting Medical eligibility assessment. may then make may then make medical practitioner. Practitioner (‘CMP’) Person may then make written declaration, written declaration, Person referred to who conducts eligibility written declaration, followed by a final followed by a final independent medical assessment. Person makes followed by a final request. Coordinating request. Coordinating practitioner who gives final request to PMP request. Coordinating Medical Practitioner Medical Practitioner second opinion eligibility who conducts eligibility Medical Practitioner conducts final review conducts final review assessment. Third opinion assessment. Person then Conducts final review and, together with and applies for a VAD on eligibility is sought as gives final permission and applies for a VAD the person, makes an administration permit. required. Person chooses for VAD and makes an administration permit. administration decision. the date and time for administration request. administration of the VAD substance.

× In Canada, one initial request must be made to a practitioner, and that practitioner bears the responsibility of obtaining a second opinion by a second independent medical practitioner that the person meets all the eligibility criteria. † Under the Tasmanian Bill, where a person’s request for VAD is made orally, the person must have clearly indicated to the medical practitioner in person, and not by way of audio-visual link that the person wishes to access VAD. * In Western Australia and New Zealand and under the South Australian Act, a written declaration made by a person must be signed by the person, though if the person is unable to sign, another may sign on the person’s behalf, in the presence of the person. ˜ Whilst the Tasmanian Bill does not contain a set waiting period, it provides that a person must not make a second request to their Primary Medical Practitioner within 48 hours of having made their first request, and further that a person must not make a final request to the Primary Medical Practitioner within 48 hours of having made the second request. Exceptions may be granted if the Medical Practitioner considers that the person is likely to die within 7 days or is likely to cease to have decision-making capacity within 48 hours. ˆ The Victorian and Western Australian legislation, as well as the South Australian Bill, prescribe that a person may not make a final request for VAD before 9 days have elapsed since the making of their first request, and in any case, at least one day after the consulting assessment in which the person was found to be eligible for VAD was conducted. In both jurisdictions, the final request can be made before this period has elapsed if the Coordinating Practitioner considers that the person is likely to die before the expiry of this period and this is consistent with the prognosis of the Consulting Practitioner. ** The Canadian legislation requires that there be a 10-day consideration period between a person making their second request for VAD and when the VAD substance is administered. Δ Canada’s provinces and territories have the autonomy to make their own regulations about VAD requests, the administration of VAD and data collection. This is because the focus of the national legislation is to decriminalise assisted dying by amending the Criminal Code, and not to create a standardised national regime.

50 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 4.2 COMPARATIVE VAD TABLES - ADMINISTRATION

Table 4.4: Comparative analysis of the administration of voluntary assisted dying substance in voluntary assisted dying legislation

AUSTRALIA INTERNATIONAL

Tasmania Victoria Western Australia South Australia New Zealand Canada Jurisdictional End of Life Medical Comparison: Voluntary Voluntary Voluntary End of Life Choices (Voluntary Assistance Key Elements Assisted Dying Assisted Dying Assisted Dying Choice Act Assisted Dying) in Dying Act 2017 Act 2019 Bill 2020 2019 Bill 2020 Act 2016

Administration of VAD Substance

Person can indicate their wishes for the mode of Y N N N Y Δ administration

Administration permit/ certificate is required Y Y N Y N N

Oversight body has permission function in Y Y N Y Y N relation to administration

Provision made for self- administration Y Y Y Y Y Y

Self-administration may occur in total privacy Y Y Y Y N Y

Contact person must † † be appointed Y Y Y Y N** N

Provision made for assisted self- Y*** N N N N N administration

Provision made for administration by a Y*** Yˆ Y*** Yˆ Y Y health practitioner

Health practitioner who administers VAD substance can be a Y± N Y× N Y× Y× medical practitioner or a nurse

Practitioner administration must be N Y Y Y N N witnessed

Provision made for person’s wishes with respect to any Y N N N N Y complications in administration

The person indicates Self-administration is the The person, in consultation The Coordinating The person completed Δ their wishes for default administration with the Coordinating Medical Practitioner the required form and Further information administration in the procedure, but if person Practitioner, makes an applies to the Chief selects the date and in respect of the final permission. The is physically unable to administration decision. Executive of the time for administration. administration PMP applies for the administer or digest Self-administration is the administrative unit of Subsequently, the process in each relevant certificate, and the VAD substance, the default administration the Public Service for a person must choose an the VAD Commission Coordinating Medical procedure, but practitioner VAD permit. The Chief administration method. jurisdiction determines whether Practitioner may apply administration may Executive may issue Before administration the certificate should for a practitioner be available.*** The or refuse to issue the can occur, the Registrar be accepted or refused. administration permit administration decision permit. A practitioner must check that the instead of the default self- authorises the Coordinating administration permit requisite process has administration permit. Practitioner to prescribe the may only be applied been carried out and The Secretary determines relevant VAD substance. for if the person is notify the attending the application for the The VAD Board plays no incapable of self- practitioner of the administration permit. role but has a retrospective administration. outcome. review function.

Δ Canada’s provinces and territories have the autonomy to make their own regulations about VAD requests, the administration of VAD and data collection. This is because the focus of the national legislation is to decriminalise assisted dying by amending the Criminal Code, and not to create a standardised national regime. For example, Quebec’s legislation does not permit the self-administration of a VAD substance. † Under the Tasmanian Bill and Western Australian Act, a contact person must only be appointed where the person is intending to self-administer the VAD substance. ** In New Zealand, no provision is made for the appointment of a contact person. Under the Act, both self-administration and practitioner administration occur in close proximity to the attending medical practitioner or attending nurse practitioner. ˆ In Victoria and under the South Australian Bill, a person may only access practitioner administration if the person is physically incapable of the self-administration or digestion of the VAD substance. *** Under the Tasmanian Bill, a person must have been issued an AHP administration certificate if they intend to have the AHP administer to them a VAD substance, or assist them with self- administering a VAD substance. The AHP may only issue such a certificate if they are satisfied that it is inappropriate for the person to self-administer, having regard to one of: the patient’s ability to self-administer or digest the VAD substance, the patient’s concern about self-administering, or the method of administration that is suitable for the patient. This position is ambiguous, and discloses a drafting error. Section 86(5) has virtually the identical wording to s56(2) of the Western Australian Act but that deals with practitioner administration only. The confusion lies in the fact that this subsection has been combined as a key eligibility section for an AHP administration certificate, but that is widely defined to cover the three forms of VAD administration in s86(1) which include self-administration and assisted self-administration. Private self-administration has its own certificate provision in s84. InWestern Australia, a person may only access practitioner administration if self-administration would be inappropriate in the opinion of the coordinating practitioner, having regard to at least one of: the person’s ability to self-administer, the patient’s concerns about self- administration, and the method for administering the substance that is suitable for the patient. ± Under the Tasmanian Bill, registered nurses can act as Administering Health Practitioners. × In Western Australia, New Zealand, and Canada, nurse practitioners can administer a VAD substance to a person.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 51 4.2 COMPARATIVE VAD TABLES - LEGAL PROTECTIONS

Table 4.5: Comparative analysis of legal and other protections in voluntary assisted dying legislation

AUSTRALIA INTERNATIONAL

Tasmania Victoria Western Australia South Australia New Zealand Canada Jurisdictional End of Life Medical Comparison: Voluntary Voluntary Voluntary End of Life Choices (Voluntary Assistance Key Elements Assisted Dying Assisted Dying Assisted Dying Choice Act Assisted Dying) in Dying Act 2017 Act 2019 Bill 2020 2019 Bill 2020 Act 2016

Legal and Other Protections

Health practitioner prohibited from initiating discussion about VAD† N* Y N* Y Y N*

Person free to withdraw from VAD process at any time Y Y Y Y Y Y

Medical practitioners are not able to find a person eligible for VAD unless satisfied that the person has Y Y Y Y Y Y decision-making capacity and is acting voluntarily

Witnesses to formal documents and/ or administration of a VAD substance Y Y Y Y N** Y must be eligible

Health practitioners’ participation is voluntary, they can conscientiously Y Y Y Y Y Y object at any time

Legal protection is given to medical practitioners who, in good faith and without negligence, provide Y Y Y Y Y Y assistance in relation to VAD in accordance with the legislation

Legal protection is given to others present, such as ambulance officers and health practitioners, where Y Y Y Y Y Y administration of a VAD substance has occurred

Prohibition of discriminatory conduct towards persons who provide N N N N Y N assistance in relation to VAD

Provision is made for the safe handling of the VAD substance, its secure storage Y Y Y Y Y N and/or labelling

Contact person must be appointed to ensure the safe handling of any unused or remaining VAD substance. Yˆ Y Yˆ Y N*** N×

Makes explicit that Provides for Where an authorised Provides for mandatory Provides that Δ medical practitioners mandatory reporting supplier receives reporting to AHPRA advance care Jurisdiction-specific who refer a person to AHPRA in respect a prescription for in respect of a breach directives may legal protections or who request for of a breach of the a VAD substance, of the prohibition on not provide for information in relation prohibition on they must verify the initiating discussion VAD and that to a person are not initiating discussion authenticity of the about VAD and gives welfare guardians liable to punishment. about VAD and gives prescription and fill legal protection to have no power to legal protection to out the appropriate persons making such make decisions persons making such documentation. disclosures. or take actions for disclosures. a person under the Act.

† In all analysed jurisdictions, medical practitioners can provide information about VAD to a person at that person’s request. * Under the Tasmanian Bill and Western Australian and Canadian Acts, medical practitioners can initiate discussions that are in substance about VAD, if they also provide to the person other information, including the person’s palliative and non-palliative treatment options and their anticipated outcomes. ** The New Zealand Act does not require documents or requests to be witnessed. *** As per 4.2.4 above, the New Zealand Act makes no provision for the appointment of a contact person, This is because the attending medical practitioner or attending nurse practitioner must be present whilst the person self-administers the VAD substance. ˆ Under the Tasmanian Bill and Western Australian Act, a contact person must only be appointed where the person is intending to self-administer the VAD substance. × The national legislation does not require the appointment of a contact person to ensure safe handling of the VAD substance. However, Canada’s provinces and territories have the autonomy to make their own regulations about the administration of VAD and may require this measure. Δ Canada’s provinces and territories have the autonomy to make their own regulations about VAD requests, the administration of VAD and data collection. This is because the focus of the national legislation is to decriminalise assisted dying by amending the Criminal Code, and not to create a standardised national regime.

52 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 4.2 COMPARATIVE VAD TABLES - MONITORING AND OVERSIGHT

4.6 Comparative analysis of monitoring and oversight provisions in voluntary assisted dying legislation

AUSTRALIA INTERNATIONAL

Tasmania Victoria Western Australia South Australia New Zealand Canada Jurisdictional Medical Comparison: End of Life Choices Voluntary Voluntary Voluntary End of Life Assistance Key Elements (Voluntary Assisted Assisted Dying Assisted Dying Assisted Dying Choice Act in Dying Dying) Bill 2020 Act 2017 Act 2019 Bill 2020 2019 Act 2016

Monitoring & Oversight

Establishment of an oversight body(ies) Y Y Y Y Y N

Assessing medical practitioners must notify/provide forms to the oversight body Y Y Y Y Y Y throughout the request and assessment process

Health practitioner conducts a final review of documents created in request and assessment process N Y Y Y N N prior to commencement of administration procedures

Oversight body has permission function in relation to authorisation † to prescribe a VAD Y Y N Y Y Y substance/issuing of a VAD permit

Oversight body has function in relation to referring certain matters Y Y Y Y Y Δ to relevant bodies (e.g. police, coroner, AHPRA).

Oversight body’s reporting role includes the requirement to make Y~ Y‡ Y Y Y Y annual reports and lay them before Parliament.

A named body must maintain a list/register of qualified practitioners willing to participate in Y N Y** N Y Δ the VAD process

The Bill establishes a Establishes the VAD Establishes the VAD Establishes the VAD Establishes the end-of- Δ VAD Commission as Review Board, which has Review Board, which Review Board which life Review Committee Elaboration on the relevant monitoring wide-ranging powers of has obligations with has wide-ranging which has functions in the monitoring and oversight body. In review. The Head of the respect to review and powers of review. relation to monitoring and oversight roles addition to its function Department of Health monitoring, including The Chief Executive and review. Noted above of the relevant in accepting or refusing and Human Services providing information has an important in connection with requests from Primary has an important to a person’s contact permission function ‘Administration of the statutory bodies Medical Practitioners permission function person outlining their (noted in connection VAD substance,’ the for VAD substance (noted in connection obligations and support with ‘Administration Registrar (an employee authorisations (noted with ‘Administration services available to of the VAD substance’) of the Ministry of in connection with of the VAD substance’) them in managing in determining the Health nominated by ‘Administration of the in determining the their obligations. application by a the Director-General VAD substance’), the application by a Coordinating Medical of Health) must check Commission must also Coordinating Medical Practitioner for a that the requisite maintain a list of trained Practitioner for a VAD VAD permit. process has been carried and willing medical administration permit. out and notify the practitioners, nurses attending practitioner and pharmacists. of the outcome before administration can occur.

† In Western Australia, the VAD Review Board has a retrospective review function instead of permission function, and at various stages is given copies of the request and assessment forms and the forms required to be submitted after administration has occurred. ~ Under the Tasmanian Bill, the VAD Commission must also report to the Minister on the operation of the Act in its first 6-month period. ‡ Under the Victorian legislation, the VAD Review Board is also required to produce reports every 6 months on the operation of the Act. ** Under the Western Australian Act, the Chief Executive Officer of the Department must publish an up-to-date list of authorised suppliers and disposers of VAD substances on the Department’s website. *** Under the Canadian Act, all participating health practitioners are required to record information about those who access VAD under the Act. However, it is not clear where this information goes or how it is used. Δ Canada’s provinces and territories have the autonomy to make their own regulations about VAD requests, the administration of VAD and data collection. This is because the focus of the national legislation is to decriminalise assisted dying by amending the Criminal Code, and not to create a standardised national regime.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 53 4.3 TASMANIA’S END-OF-LIFE they also provide information about other treatment and CHOICES (VOLUNTARY ASSISTED palliative care options and the likely outcomes of those DYING) BILL 2020: COMPARATIVE treatments (s. 17). In Victoria, New Zealand and in the ANALYSIS. proposed South Australia legislation, health practitioners are prohibited from raising VAD as an option with Both in substance and in form, the Tasmanian VAD Bill patients and can only provide information about VAD if is largely based on and similar to the legislation already specifically asked about VAD by that patient. enacted in Victoria and Western Australia, and with the South Australian bill introduced in 2020. Largely 4.3.2 Autonomy and choice in consistent features include: administration method

• the principles which inform the operation of the The substance administration options proposed by VAD regimes the Tasmanian VAD Bill would make it the only VAD regime in Australia to provide what are essentially four • the protection from liability each jurisdiction administration options for persons seeking to access VAD. affords to medical practitioners and Consistent with positions in Victoria, Western Australia pharmacists who do and do not participate in the and Canada, and with the draft SA Bill, the Tasmanian VAD process VAD Bill makes provision for both self-administration and administration of the VAD substance to the person by • requirements around medical consultation and the Administering Health Practitioner (‘AHP’). By contrast referral with these jurisdictions, the Tasmanian VAD Bill also provides for the person to be assisted by an AHP to self- • stipulations around the handling, transfer, storage administer the VAD substance (s. 82). The AHP may be and disposal of VAD substances either a medical practitioner or a registered nurse (s. 62), a • the mandatory training and qualifications of feature of the VAD Bill which is designed to ensure that a participating health practitioners greater number of health professionals are able to provide administration support to persons, especially in regional • the criteria a person must satisfy to be eligible or remotes areas. to access VAD. Whether explicitly stipulated as an eligibility criterion or provided elsewhere in A further distinctive yet related feature of the Tasmanian the relevant legislation or draft bill, all Australian VAD Bill is its provision for a person to indicate their jurisdictions mandate that the person seeking to wishes with respect to the method of administration. access VAD must have decision-making capacity, Under the VAD Bill, when the person completes the be acting voluntarily, meet specific residency formal, written form termed the ‘final permission,’ requirements, and be experiencing intolerable they must state whether they wish to self-administer, suffering in relation to an illness or condition be assisted by the AHP to self-administer, or have the expected to cause death within a specified (and AHP administer the substance to them (s. 82). Whilst relatively short) time period AHPs are constrained by the requirement that self- administration must be inappropriate before the AHP Despite these similarities, there are six key points can assist with or administer the VAD substance, this of difference between the Tasmanian VAD Bill and feature gives more autonomy to persons than in the other the enacted or proposed regimes in the other three Australian jurisdictions, where persons are not able to Australian jurisdictions, each of which is discussed indicate a preference or wish in relation to the method below. Some of these differences help to position the of administration. In Victoria and South Australia, self- Tasmanian Bill VAD as providing for one of the ‘safest’ administration is the default administration method, VAD regimes in the world although, as discussed below and practitioner administration may only occur where and further in Section 6, the provision of additional the person is physically incapable of self-administration. processes in the Tasmanian VAD Bill may make VAD less In Western Australia, practitioner administration can accessible. also only occur in the limited circumstances in which self-administration would be inappropriate. In this way, 4.3.1 Ability for health practitioners to the Tasmanian Bill more closely approximates the New initiate conversations about voluntary Zealand Act, under which the person in practice has assisted dying greater scope to indicate their wishes for administration, and autonomously selecting the administration The Tasmanian VAD Bill allows medical practitioners to method (s. 19(2)). initiate conversations with patients about VAD as long as

54 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 4.3.3 Broad range of administering health 87, see section 3.4). This constitutes a further, incidental practitioners safeguard whereby a contact person does not need to be relied upon to handle and return the VAD substance. The Tasmanian Bill provides that both medical Rather, the AHP is responsible for handling and disposing practitioners and registered nurses are able to administer of any unused or remaining VAD substance. In this a VAD substance to eligible persons (ss. 62(2)). This respect, the Tasmanian VAD Bill is similar to the New position is consistent with the regimes in Western Zealand Act, under which there is no provision for the Australia, New Zealand and Canada. By contrast appointment of a contact person because all forms of the Victorian regime and the SA Bill provide that administration under the Act require medical supervision administration may only be undertaken by a medical (s. 20). However, in the case of private self-administration practitioner. in the VAD Bill, there is no requirement for the AHP to be present at the time of self-administration, and a contact 4.3.4 Additional and absent processes person must store and return any unused VAD substance (s. 92). The Tasmanian VAD Bill has additional checks built into the request and assessment process. The VAD Finally, greater legal protection is afforded to practitioners Bill requires that persons must make three separate who provide assistance in relation to VAD under the requests for VAD, and that a person’s eligibility to receive Tasmanian VAD Bill than under the Victorian and Western VAD must be assessed on four separate occasions. By Australian Acts. Consistent with the New Zealand Act and contrast, the Victorian and Western Australian Acts and the SA Bill, the Tasmanian VAD Bill explicitly prohibits the the SA Bill all make provision for the person to make punishment of a medical practitioner or AHP on the basis two separate requests for VAD, and for the completion of their making a request or referral in relation to the of two assessments of the person’s eligibility for VAD. VAD process (s. 136). Such protection is absent from the In New Zealand and Canada, a person need only Victorian and Western Australian regimes. make one request for VAD, after which two eligibility assessments are subsequently conducted. The Tasmanian Three processes of note which feature in most other VAD VAD Bill goes to greater lengths than in these other regimes are absent from the Tasmanian VAD Bill. First, jurisdictions to ensure that a person’s wish to access the Bill VAD does not make provision for a set waiting VAD is enduring, and that persons who do not meet the period between the first and final requests, as is the eligibility criteria are not able to access VAD. case in Victoria, Western Australia, and under the SA Bill. Whilst the VAD Bill does stipulate that a person’s The Tasmanian VAD Bill also makes important provision requests must each be made at least 48 hours apart, for oversight at the commencement of the substance the other Australian jurisdictions all lay down a nine- administration process. The VAD Bill is consistent with day waiting period after making the first request and the Victorian, South Australian and New Zealand regimes before making the final request. The Canadian legislation in that the oversight body, namely, the VAD Commission, specifies a ten-day consideration period between the must give permission before the Primary Medical person’s final request and the administration of the VAD Practitioner is authorised to prescribe, receive and substance, though the New Zealand Act does not specify subsequently dispense or administer a VAD substance to a waiting period. Second, the VAD Bill does not require a person (ss. 66-68). This permission step does not feature the Primary Medical Practitioner to conduct a ‘final in the Western Australian legislation nor in the Canadian review’ of all the documents completed in compliance federal legislation. with the VAD process prior to applying to an oversight body for authorisation for administration. Finally, the The Tasmanian VAD Bill also makes provision for further Tasmanian VAD Bill does not require that administration processes in the cases of AHP administration and of a VAD substance to a person by the Administering assisted self-administration. By contrast to the self- Health Practitioner be witnessed by a third person. administratio regimes in Victoria, Western Australia In Victoria, Western Australia and under the SA and the SA Bill which only make provision for medical Bill, practitioner administration must be witnessed by an supervision in the case of direct administration of the eligible, independent witness. VAD substance by the relevant practitioner, three of the four administration methods under the Tasmanian VAD 4.3.5 Qualifications of participating medical Bill must be medically supervised. The VAD Bill stipulates practitioners that during administration by the AHP and duringself- administrationwhen the AHP either assists or is otherwise The Tasmanian VAD Bill, consistent with the legislation present, the AHP must remain in the room or in a nearby in other jurisdictions, sets out minimum professional location until the person dies or is otherwise removed (s. qualifications for medical practitioners who wish to

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 55 participate in the VAD process. Under the VAD Bill, 4.3.6 Attempts to ensure equality of access authorised medical practitioners must either be to voluntary assisted dying vocationally registered general practitioners or hold fellowships with a specialist medical college (s. 9). Under the Tasmanian VAD Bill, the VAD Commission Unlike the Victorian and Western Australian Acts, there is tasked with maintaining and disseminating (with is no express requirement in the Tasmanian VAD Bill consent) a list of trained and willing medical practitioners, that medical practitioners have a minimum period of nurses and pharmacists (s. 113). Further, and in practice in the relevant area, though persons who are contrast to the Victorian and New Zealand regimes, either vocationally registered as a general practitioner or and the South Australian Bill, health practitioners in who hold a fellowship with a specialist medical college Tasmania can provide this information, even where would in practice have at least 5 years’ experience as a the person has not requested it, if such information is medical practitioner. The Tasmanian Bill also requires provided in concert with information about the other the practitioner to have experience in the patient’s palliative and non-palliative treatment options available to condition, which is arguably more relevant than the the person and the likely outcomes of those treatments number of years of practice. The Victorian Act prescribes (s. 17). Finally, the Tasmanian VAD Bill explicitly states the that either the co-ordinating medical practitioner or need to ensure equality in terms of geographical access each consulting practitioner has practiced as a medical as a principle which informs the VAD regime (s. 3(2)), practitioner for five years after completing a fellowship or and as discussed at 4.3.2, makes provision for registered attaining vocational registration (s. 10(2)), and the Western nurses to act as AHPs. Australian Act requires that medical practitioners who hold general registration must have practiced the profession for a minimum of 10 years (s. 17(2)).

56 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Table 4.7: Distinctive features of the Tasmanian VAD Bill

Issue Distinctive feature of the Tasmanian VAD Bill

Eligible persons can indicate their wishes for how the VAD substance will be administered, with three options provided: private self-administration, administration 1. Choices and autonomy in assisted by the Administering Health Practitioner (AHP) or direct administration by administration method the AHP. In practice, the latter two options will only be open to the person if the AHP considers that private self-administration would be inappropriate.

2. Health practitioners eligible to Both medical practitioners and registered nurses are able to act as Administering administer VAD substance to persons Health Practitioners during the final stage of the VAD process.

Three separate requests must be made for VAD by the person seeking access.

Four separate eligibility assessments are conducted.

The VAD Commission must give permission before the VAD substance can be dispensed or administered to an eligible person. 3. Additional features Two administration methods are supervised by the AHP. Where self-administration is chosen there is no requirement for a 3rd party contact person.

It is prohibited to punish a medical practitioner on the basis of their accepting a request or making a referral pursuant to the Bill.

No explicit waiting period between the first and final requests (although the minimum time in which the VAD Commission must complete different elements of the VAD approval process, together with minimum periods prescribed between the first, second and third requests for access represents a de facto waiting period). 4, Processes present in other regimes, The Primary Medical Practitioner is not required to conduct a ‘final review’ of all of the absent from the Tasmanian VAD Bill documents previously completed in compliance with the VAD process prior to applying to the VAD Commission for authorisation for administration.

No requirement that direct administration (ie self-administration of the VAD substance) be witnessed.

The VAD Commission must keep and disseminate a list of trained and willing medical practitioners and connect persons with an Administering Health Practitioner where their Primary Medical Practitioner is unable or unwilling to act.

Health practitioners are able to discuss VAD with a person, even if that person has not 5. Provisions designed to ensure requested VAD, provided this discussion takes place in the context of a wider discussion equality of access about the person’s treatment options and likely outcomes.

There is no express requirement that medical practitioners who act as Primary Medical Practitioners or Consulting Medical Practitioners have a minimum period of practice in the relevant area.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 57

PART THREE. END-OF-LIFE CHOICES (VOLUNTARY ASSISTED DYING) BILL 2020: PUBLIC SUBMISSIONS AND FURTHER CONSIDERATIONS

Section 5: Submissions made to the independent Review Panel

Reflecting its Terms of Reference, the Panel sought public submissions in relation to the Tasmanian VAD Bill. Given the Panel’s mid-February reporting deadline, the call for submissions was published on 2 December 2020 (https://www.utas.edu.au/vad- review), with submissions closing 5pm, 4 January 2021. Given time constraints and the Panel’s Terms of Reference, the consultation was limited to written submissions and a workshop attended by those with direct experience in the implementation and administration of VAD regimes in Victoria and Western Australia (Section 6.1). The Panel notes that the VAD Bill itself was informed by extensive consultation and approximately 130 submissions were made to the bill’s sponsor the Hon. Mike Gaffney.

Table 5.1: Submissions to the Independent Review

Tasmanian Interstate and international Total

Submission made by individuals (non- 8 2. 10 health professionals)

Submission made by individual health 10 3 13 professionals

Submission made by organisations 4 7 11 (general)

Submission made by organisations 3 4 7 (health and care)

Total 25 16 41

This Section provides a synopsis of the key themes and The Panel would like to thank all of the individuals and issues identified in the 41 submissions received by the organisations who made submissions. In addition to this Panel. It summarises the most common arguments in summary, submissions have also informed the Report as support of and in opposition to VAD before considering a whole. the specific views held by health practitioners who made submissions. This Section concludes with a summary of the most commonly proposed amendments made in submissions, including those which the Review Panel believe warrant particular consideration. A list of all submissions to the Review is provided in Appendix 1. Other than those identified as being confidential, all submissions will be published on the Panel’s website upon public release of this Report.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 59 5.1 KEY THEMES FROM PUBLIC expressions of individual autonomy SUBMISSIONS • There is strong support in the Tasmanian The submissions to the Panel reflected the diverse and community for the introduction of VAD as an end- often deeply held views in relation to VAD held by the of-life option wider Tasmanian community. While some submissions • VAD laws are already working effectively and safely expressed a general perspective on VAD, most engaged in many other comparable jurisdictions with the Terms of Reference and provided a more detailed assessment of the specific provisions of the • Medical practitioners currently must observe some Tasmanian VAD Bill and suggested amendments. patients endure ongoing and avoidable suffering, Whereas survey data suggests that the majority of and that is a cause of significant distress to these Tasmanians support VAD (Section 1), a narrow majority practitioners of submissions were opposed to or had concerns about the proposed VAD Bill. The Panel notes, however, that • Religious beliefs held by some members of the submissions do not necessarily provide a representative community should be respected but should not sample of community opinion as a whole and, impinge upon the ability of others to access VAD irrespective of the issue under consideration, groups and individuals opposed to legislative change have a greater • There is no evidence that the introduction of incentive to mobilise and prepare submissions relative to VAD is a threat to vulnerable members of the those who support proposed reforms (Olson 1965). community

Of the submissions received, 18 represented the views of • There is no evidence that the introduction of VAD organisations and 23 submissions were from individual will encourage ‘suicide culture’ community members. The Panel received 18 submissions Many submissions argued that the VAD Bill contains from health professionals, their professional associations adequate safeguards to protect vulnerable members and from organisations which provide health and social of the community, and that safeguards must always care services. These submissions provided valuable be balanced with a need for VAD to be accessible. A insights into the implications of VAD for those who would commonly expressed sentiment was that unnecessary be providing services and support in relation to VAD. restrictions should not be added to the VAD Bill in order Overall, the views expressed in the submissions are varied to placate those opposed to VAD. A significant number and complex, but analysis reveals a number of common of submissions also expressed support for increasing themes. Respect for principles of personal autonomy, funding to achieve and maintain world-class palliative protection against wrongful death and the importance of care services in Tasmania, while arguing that palliative high quality and accessible palliative care were common care has inherent limits and should not be the sole option to almost all submissions, revealing a shared desire to for those suffering at the end of life. Several individual improve access to, and quality of, end-of-life care. submissions detailed cases where their loved ones suffered unbearably, even while receiving best-practice 5.1.1 Community views supporting voluntary palliative care, and detailed the enormous impact of this assisted dying suffering on themselves and their families.

Submissions in favour of the VAD Bill highlighted a range Nearly all submissions in support of VAD did not think of arguments for supporting the introduction of VAD in organisations should have a right of non-participation Tasmania: although most were silent on whether they endorsed the practice of allowing organisations to elect not to • VAD allows individuals to choose the timing offer VAD services. Many argued that an individual’s right and manner of their death, offering dignity and not to participate in VAD on conscientious grounds is independence to those who are suffering sufficient to ensure that the religious or moral views held by health practitioners are respected. Moreover, a number • Palliative care has its limits, and is not always an of submissions were concerned that if organisations were adequate end-of-life option allowed to refuse to participate in the VAD process, VAD would become less accessible in Tasmania and vulnerable • There are sufficient safeguards in the VAD Bill people would be forced to transfer between hospitals to against malpractice or abuse access VAD which may exacerbate suffering. The issue of • Choosing to access VAD is a difficult decision, organisational non-participation is considered in more and respect should be given to such considered detail in Section 6.5.

60 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 5.1.2 Community views opposing voluntary suicide’. Most (but not all) faith-based groups who made assisted dying submissions argued that VAD threatens the sanctity of life and confounds the deeply held view that no person Submissions opposed to the Bill share a number of should end another human’s life. These submissions also common concerns about VAD. These include that VAD is contended that human dignity is inherent and inviolable, ethically unjustifiable and challenges a long established and that VAD is not needed to preserve dignity. religious and ethical belief that people (and health practitioners in particular) should not deliberately end the A number of submissions also maintained that in life of another human. Common arguments include: a society which has chosen to condemn capital punishment, VAD legislation represents a moral and • People who are very sick and suffering intolerably ethical double standard. Several submissions also made do not have capacity to make the decision to passionate arguments against allowing people who have access VAD a mental health condition or disability to be considered eligible for VAD, even if they are eligible for VAD on other • Referring a patient to access VAD, or administering grounds; they argued that these people are among the VAD, will place a significant burden on health most vulnerable to potential abuses of the legislation. practitioners, and cause them distress Unlike those in favour of VAD, almost all submissions • Given there is no recourse there are no safeguards opposing the VAD Bill argued that organisations should that could possibly protect against all abuse or have the right not to participate in nor facilitate VAD misuse of the legislation although not all of these explicitly stated the need for this right to be incorporated into the legislation. Indeed, • High quality and accessible palliative care can a number of submissions from health care organisations adequately address end-of-life suffering and made clear their intention not to facilitate VAD, resources should be devoted to improving premised on the belief that intentionally ending a life is palliative care options rather than developing a incongruent with their organisational ethos and the goals VAD regime and practices of health care, and particularly palliative • That legalising VAD may lead to rising suicide rates care.

• The VAD Bill fundamentally threatens the health 5.1.3 Perspectives from health practitioners and lives of vulnerable people and may exacerbate Submissions were received from health practitioners elder abuse who have practiced in a number of jurisdictions, both • Other jurisdictions which have introduced VAD overseas and within Australia. Contributions were made have seen a widening of the criteria of eligibility from across the healthcare sector including nurses, (this is sometimes referred to by opponents of VAD doctors and specialists. The viewpoints among health as a ‘slippery slope’) practitioners differed significantly, as did submissions that were written on their behalf by various organisations • No health practitioner is able to accurately predict representing health professionals and service providers. when a person will die, and thus the timeframes provided in the VAD Bill are illusory protections Within the submissions from health professionals, common arguments in favour of VAD are similar to those • Elderly people will feel obliged to seek VAD so as detailed in s 5.1.1. They are: to relieve society of the perceived burden they are placing on family and carers. This may especially • For a small number of patients, palliative care is be true when the residential aged care sector is in not an adequate or acceptable end-of-life option, crisis and VAD legislation will address a demonstrated need in the Tasmanian community • VAD will become a forced choice for those who struggle to access and afford palliative or • Having choice over the time and manner of death residential aged care is of paramount importance in preserving the dignity and holistic wellbeing of terminally ill As was noted in the introduction to the Report, the patients who are suffering at life’s end. language associated with VAD is highly contested and almost all submissions opposing the Bill referred to ‘VAD’ • Significant stress is placed upon medical as ‘assisted suicide’, ‘euthanasia’ or ‘physician-assisted practitioners who must watch patients suffer horrifically and needlessly

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 61 • There is no evidence, beyond circular arguments, Submissions highlighted the need for high quality to demonstrate that more vulnerable people are at support and training for those healthcare professionals risk if VAD legislation is introduced providing VAD services or support. This was also a major theme raised at the VAD review workshop (6.1). • There are health practitioners within the Tasmanian community willing to participate in the As in other jurisdictions some health professionals and VAD process their representative groups are strongly of the view that VAD is fundamentally incompatible with ethical The most frequent arguments against VAD in medical practice and that establishing legislation under submissions of health practitioners are: which a doctor, under certain circumstances, can end a patient’s life crosses a fundamental threshold which • That legalising VAD will erode the perceived will erode professional norms, collegiality and patient- integrity of the medical profession because so doctor relationships. Beyond this fundamental ethical doing allows individual autonomy to prevail over divide, there is also an active debate and a range of views long held ethical considerations and professional concerning the trade-off between VAD safeguards and norms concerned with ending a patient’s life. the accessibility of VAD for people who seek it. These • In similar regimes, such as Victoria, VAD has issues are discussed in greater detail in Section 6.3. impacted upon the cohesion of medical teams, 5.1.4 Perspectives from Tasmanian dividing teams into those who support VAD and those who oppose it Aboriginal communities The Panel had some engagement with members of • There are health care practitioners in Tasmania Tasmanian Aboriginal communities who advised that who are not willing or able to participate in the VAD was not a part of their culture. They stressed a VAD process and who will suffer harm if they are strong belief in dying naturally and allowing the land to required to take them naturally. There are traditional ceremonies • VAD encourages a suicide culture, which is around dying and processes to follow which should not, if inconsistent with the traditional tenets of the possible, be interrupted by an artificial and Westernised medical profession practice which hastens death.

• ‘Doctor shopping’ will occur if VAD is introduced, These views are consistent with views of Aboriginal as people from other jurisdictions attempt to people who gave evidence to the Senate Legal and access VAD in Tasmania Constitutional Legislation Committee of the Australian Senate, where VAD was consistently described as not • VAD will put pressure on people with chronic “the Aboriginal way” (Senate Legal and Constitutional illness and disabilities to hasten their death Legislation Committee, Euthanasia Laws Bill 1996, March 1997, p. 46; Also see Fleming, 1999). • Expanded eligibility criteria in the future is likely, and could include children which is unacceptable More systematic consultation with Tasmanian Aboriginal communities should be undertaken during the • Patients will be fearful of entering care homes or implementation of the VAD Bill to ensure consideration of hospitals which have facilitated the VAD process, wider range of aboriginal perspectives. as they will believe that they will be pressured to consider VAD 5.2 SPECIFIC AMENDMENTS PROPOSED IN SUBMISSIONS • Such problematic legislation must not be introduced for the sake of ‘a few hard cases’ Given this Review and the submissions made to it are concerned with the specific provisions of the VAD Almost all health practitioners advocate for better Bill rather than VAD in general, many submissions resourcing of palliative care in Tasmania, to ensure that proposed specific amendments to the VAD Bill. The most Tasmanians are not seeking VAD because they cannot significant of these which clearly align with the Terms of access high quality palliative care. A significant number Reference are listed below along with a brief justification of practitioners, regardless of their support for VAD, for the proposed amendment. These amendments reflect supported the introduction of workplace frameworks a wide range of perspectives and do not necessarily that offer protection for employees who either choose to reflect the views of the Panel. engage with VAD or conscientiously object, to promote collegiality and prevent harassment or discrimination.

62 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 5.2.1 Proposed amendments in relation Suggestions to broaden the eligibility criteria to the objectives, principles and • People on long-term visas or those who administration of the Act permanently reside in Tasmania should be allowed • Palliative care in Tasmania must be guaranteed to access VAD. This permits greater access to VAD in the Bill as being ‘gold-standard’, and greater without encouraging ‘VAD tourism’. funding should be committed to palliative care • Prognostic timeframes should be removed from training and practice. This is to ensure that no the Act, or significantly reduced. This is because person is accessing VAD because they cannot timeframes merely prolong unnecessary suffering afford palliative care. and death cannot be predicted accurately by • Community education programs about VAD and medical professionals. its role as an end-of-life option must be designed 5.2.3 Proposed amendments in relation to and implemented. The community must be the consultation and referral process educated on how to navigate the system to increase familiarity with and acceptance of VAD. Suggestions to restrict access to VAD

• Wherever occurring in the VAD Bill, ‘VAD’ should • There should be a general restriction on all health be changed to ‘assisted suicide’ or ‘euthanasia’. practitioners from initiating discussions about That the categorisation of the death may have VAD. This is because not all practitioners have ramifications for insurance and accuracy is the requisite knowledge to conduct informed important. conversations about VAD.

• The principle of ensuring that all Tasmanians • The Consulting Medical Practitioner should be should have equal access to VAD services is required to provide their own report based upon laudable but unrealistic. The government does their own documentation and evidence, and not not commit to providing equal access to health rely on information given to them by the PMP. This services across the State and doing so for VAD ensures the independence and integrity of the is problematic and may create unrealistic process. expectations. • Organisations should be permitted to refuse to 5.2.2 Proposed amendments in relation to facilitate access to VAD. This is because VAD is the eligibility criteria contrary to the aims of palliative care, and many of the underlying religious or fundamental beliefs of Suggestions to restrict the eligibility criteria healthcare services. • A definition of ‘voluntariness’ must be included, to Suggestions to enhance access to VAD ensure clarity and consistency. • Instead of requiring the PMP to refer to a CMP for • The procedure for determining a person’s capacity a second opinion, the PMP should be required to must be specified and be consistent with the test refer the person to an independent committee in the Mental Health Act 2013 (Tas). of practitioners who are willing to engage in the • The Primary Medical Practitioner should be VAD process. This amendment would reduce the responsible for ensuring that all other reasonable possibility that a person would have to undertake treatments have been tried before a person is an extended search for a practitioner willing to deemed eligible for VAD. It must be mandatory engage in the VAD process (noting also that the for persons to have tried other methods of pain PMP chooses the CMP). management or relief of suffering before they • Provisions for telehealth consultations should be are permitted to access VAD. This is because VAD included, and practitioners must be required to should be a last resort. record why it was appropriate to allow conference • The power of the VAD Commission to exempt via audio-visual link. This would improve access in persons from the six-month (or 12-month) Tasmania in situations where it is too dangerous to timeframe should be removed. To allow this allows transport frail people. a ‘creeping’ of the eligibility criteria. • The second request for VAD should be able to be made verbally. It is unnecessarily onerous to require two requests in writing.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 63 • Family members should be eligible to witness the • All forms of administration should require person’s second request. This is because there are another independent practitioner to be present, already provisions in the VAD Bill stipulating that or an independent witness. This is to guarantee a potential witness is not allowed to benefit from voluntariness and prevent against abuse. the person’s death, so there is no need to exclude family members. • VAD substances which are stored in the home of the person before use must be regularly checked • Organisations should not be permitted to by a representative of the VAD Commission to refuse to facilitate access to VAD on the basis ensure proper storage. This is to prevent against of conscientious objection. It is enough that misuse of VAD substances. individuals working for those entities could individually conscientiously object if they wished • The VAD Bill should be amended to standardise to do so. which VAD substance is to be used in Tasmania and in what dose it is used. This is to ensure • Any organisation that refuses access to VAD must consistent best-practice. inform patients or residents of that policy prior to admission to the facility, and their position must • On the death certificate, cause of death must be be advertised. Entities must also facilitate transfer recorded as being VAD. This is to ensure accurate of patients to another facility in a timely and data records, and for purposes of transparency. professional manner if the patient wishes to access 5.2.5 Proposed amendments in relation to VAD, and the entity should not be permitted to the implementation and oversight of the block any of the steps of the VAD process. Act Suggestions for practitioners • A Secretariat on Palliative and End-Of-Life • The timeframe for doctors to complete VAD care must be established to help with raising training should be amended from being within awareness. Moreover, a ‘VAD Care Navigator five years to two years. service’ must be established, to assist with questions about the process, and with access to • ‘Authorised medical practitioners’ as defined in practitioners who have completed the training the VAD Bill must have at least five years post- and are willing to be involved. This is to ensure fellowship experience into a specialist medical a smoother administrative experience for college or be vocationally registered GPs, as in practitioners and patients alike. Victoria. This is to help prevent diagnostic errors. • Data collection should be introduced to • If a health practitioner conscientiously objects understand the deficiencies in palliative care. This to being involved in the VAD process, they is so there can be data-based improvements to must be required to inform the person seeking palliative care, to ensure palliative care remains a VAD immediately and provide contact details viable alternative to VAD. of a replacement practitioner. Currently there is no procedure for what should occur after a 5.3 SPECIFIC AMENDMENTS WHICH conscientious objection. Failure to respond in a THE REVIEW PANEL BELIEVE timely and appropriate manner should be met WARRANT CONSIDERATION with a penalty. Reflecting the Panel’s Terms of Reference, the aims of 5.2.4 Proposed amendments in relation to the VAD Bill and the comparative analysis conducted for the administration of the voluntary assisted this Report, the Panel believes the following submissions dying substance warrant particular consideration.

• A person should ordinarily be required to self- 5.3.1 Amendments proposed by the End of administer and only in instances where this is not Life Choices Society New Zealand physically possible, should a health-practitioner • Like the New Zealand model, PMPs should be assist. The involvement of medical practitioners required to apply to a Support and Consultation threatens the integrity of the medical profession, for End-of-Life Choice group for a second opinion, but in extreme circumstance will still ensure instead of any practitioner who, upon their access for those who physically cannot self- acceptance, becomes the CMP. This group should administer.

64 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 consist solely of practitioners willing to be involved • Section 94 should be amended to more clearly in the VAD process to ensure that the practitioner determine who is eligible to apply for a review. giving the second opinion does not hold a Specifically, it must be decided whether family conscientious objection, and avoiding delay or the members or health professionals who disagree frustration of the process for the person seeking could apply in order to frustrate the process. VAD. A similar amendment was proposed by Go Gentle Australia. • An Implementation Taskforce, VAD Care Navigator Service and a Secretariat on Palliative and End-Of- • A process should be established for what Life care should be established to raise awareness measures must be taken by a practitioner if they of the range of end-of-life care choices and to conscientiously object. The New Zealand model support the process of implementing VAD. is to be preferred, which requires a medical practitioner who conscientiously objects to inform • The data to be collected by the VAD Commission the patient of their objection, and the patient’s should include: right to seek the name and contact details of a ₀ The number of people who were receiving replacement practitioner. The new practitioner palliative care; should come from a group like the suggested Support and Consultation for End-of-Life Choice ₀ The numbers of people who apply but do not group. continue with the process, and their reasons for withdrawing; • Self-administration should be supervised by the AHP for three reasons: to ensure voluntariness ₀ The numbers of people who die before the up to the last minute: to ensure that accidental end of the VAD process; ‘out-of-sight’ self-administration after a person has lost decision-making capacity does not occur ₀ The location of the death; and to prevent accidents occurring during self- administration. ₀ Any end-of-life concerns held by the patient during the process, such as being a burden, 5.3.2 Amendment proposed by Justice being in pain or feeling a lack of control over William Cox AC the process.

• Greater cohesion and consistency between 5.3.4 Amendments proposed by MIGA the sections of the VAD Bill which determine (Medical Insurance Australia) the necessary qualifications for practitioners to participate in the VAD process. Specifically, • Consideration should be given to section 17, and sections 5, 9, and 42 must be amended to whether certain unprofessional conduct should be improve integration and to clarify the educational subject to criminal penalty. requirements for CMPs, PMPs and AHPs. • Section 18(5) should be amended to provide 5.3.3 Amendments proposed by Go Gentle guidance and lenience for practitioners who are obliged to provide information on VAD but Australia do not feel equipped to do so or may have a • The removal of s 52, which restricts a PMP being conscientious objection. involved in a person’s request for VAD within • Sections 27, 34 and 48 ought to be amended to 12 months of a previous unsuccessful process make it clear that they refer to a practitioner not as patient’s condition may have deteriorated in being able to obtain sufficient information which the interim period, warranting new assessment. is reasonably available. Instead, a new section should require the PMP to inform the CMP that the previous application was • The concept of an ‘agent’ in sections referring to ruled ineligible by two CMPs. applications for review of decisions is confusing. Instead, a ‘sufficient interest test’ should be used. • Administration of VAD by an AHP should be witnessed by a person that is independent of the • Section 135 should be amended to clarify administering practitioner. This is an important that any conduct which could be construed safeguard protecting both the patient and as unprofessional conduct or professional practitioner. misconduct will be left for determination by

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 65 regulatory and disciplinary bodies who are best placed to make such decisions.

5.3.5 Amendments proposed by Dr Helen Lord

• Deaths should be recorded on death certificates in a way that references VAD. This is to ensure accuracy of data about disease outcomes.

• A person accessing VAD should be required to write or record an audio-visual statement, documenting their reasons for accessing VAD.

• It should be clarified that an Advance Care Directive cannot be used as any part of a VAD process, and a legal guardian cannot make a request for VAD on behalf of someone. This is to clarify that VAD plays no part in Advance Care Planning (Section 6.6)

66 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Section 6 – Insights and further considerations for voluntary assisted dying in Tasmania The Report concludes by outlining issues for further consideration concerning the implementation and administration of the Tasmanian VAD Bill. This analysis is informed by public reporting on the operation of VAD regimes in other jurisdictions, the relevant academic literature and the direct experience of professionals involved in the implementation, operation and oversight of VAD in Victoria and Western Australia.

6.1 CONSIDERATIONS FOR THE some of this collaboration occurs informally between IMPLEMENTATION AND professional groups and their associations (for example, ADMINISTRATION OF the Victorian VAD Implementation Conference), there is VOLUNTARY ASSISTED DYING a growing case for greater harmonisation and resource sharing across Australia in relation to VAD data collection VAD raises complex issues with significant legal and management as well as training and support implications and consequences for health practice, the services. provision of end-of-life care and the wider community. The Tasmanian VAD Bill will provide the critically One of the most significant general lessons from important legislative foundation for provision of VAD Victoria is that a safe, effective and accessible VAD services in Tasmania but, like so many other new and regime requires a sophisticated and well-resourced complex policy initiatives, the ultimate effectiveness of administrative system and that such a system takes time the legislation is dependent on the implementation and to establish. Given that implementation of such a system administration of the Bill should it pass into law. While will take time, it is important to manage community the primary responsibility for the implementation of the expectations and communicate the fact that while formal VAD Bill lies with the Tasmanian Government, our Terms safeguards and compliance procedures will be in place of Reference require consideration of the ‘experience of when the system is first established, providing the full other jurisdictions in implementing VAD legislation to suite of access and support services will take time. identify matters that might need to be addressed or monitored should the legislation pass into law’. 6.1.2 The role of the Voluntary Assisted Dying Commission In order to provide insights into issues relating to the implementation and administration of VAD legislation There is broad agreement that establishing a system of in Victoria and Western Australia, the Panel conducted independent oversight, reporting and review of any VAD a workshop with a cross-section of professionals directly regime is essential. Independent oversight and annual involved in the implementation, oversight, administration reporting is necessary to ensure public confidence in and delivery of VAD services in Victoria and Western VAD and to identify emerging issues such as barriers to Australia. These accounts of the Victorian and Western access. The complexities and possible consequences of Australian experience to date, together with publicly VAD require a commitment to subject the Tasmanian available reports on VAD implementation in these two VAD regime legislation to independent review on a states, provide insights which are relevant to the design of regular basis to ensure that its operation is consistent the Bill and its implementation and administration. with the stated objectives of the VAD Bill and the views of the Tasmanian Parliament and wider community. To The major themes from this analysis are summarised this end, the inclusion in the VAD Bill (s. 143), requiring an below while more specific considerations are outlined independent review after three years, and every five years later in Section 6. thereafter, is important and appropriate.

6.1.1 Policy learning and collaboration The Review Workshop suggested that Tasmania’s proposed approach – wherein the VAD Commission (as The Review workshop identified the extent and value of in WA) will have responsibility for regulation, review and collaboration, information sharing and policy learning reporting under the Act – was preferred to the original between Victoria and Western Australia both in terms of Victorian approach which divided these functions legislative design and in relation to a broad cross-section between the VAD Review Board and the Victorian of administrative and program design issues. While Department of Health.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 67 By their nature, the necessary safeguards and Care navigator services administrative requirements place a significant This service promotes access in a number of ways compliance burden on all professionals involved in the including providing advice, administrative and VAD process. There are anecdotal cases where medical pastoral support to people seeking VAD, helping them practitioners have decided not to participate in VAD navigate the complex system, and providing advice due to administrative burdens rather than for reasons and administrative support to health practitioners and of conscience. While the need to provide support organisations to support their provision of VAD services. services for practitioners involved in VAD is discussed in more detail in Section 6.4, there was broad agreement Pharmacy services in the workshop that well-designed portal and data Given the specific requirements associated with the management systems for recording information relating management of VAD substances and the need to support to the VAD process can reduce the compliance burden both those seeking VAD and the AHP, VAD places specific on health professionals and improve the administrative demands on pharmacists. The Victorian approach is to efficiency of the VAD Commission. Tasmania could centralise VAD pharmacy services in a tertiary hospital benefit from adopting and adapting administrative (The Alfred) and operate state-funded outreach services systems already developed in WA and Victoria. across the state to ensure a small team of pharmacists are Those involved in the administration of VAD in Victoria trained and experienced in VAD and can provide services and Western Australia also stressed the importance of across the state. Western Australia is implementing a developing consistent approaches to data collection and similar approach. analysis (at least to a minimum common data set). This would allow governments to identify national trends and State funding packages analyse differences across states. The provision of safe, person-centred VAD services is resource intensive and requires a significant amount of Medical practitioners involved in the workshop did not planning, consultation, pastoral care and travel. While believe that the VAD Commission should maintain some costs associated with the VAD process can be a formal list of medical practitioners and registered claimed through Medicare there are many expenses nurses willing to provide VAD services (s.113 c &d of the that cannot. To address this the Victorian Government VAD Bill) arguing that health professionals on such has established funding packages to meet health a list may be targeted if the list became public. They practitioners’ VAD costs which are not covered by the considered that a referral process managed by care Commonwealth. Funding packages are administered by navigators would be more informal and flexible, and Care Navigators. therefore more appropriate (see Section 6.4.3). Neither the Victorian nor Western Australian legislation requires Efficient administrative systems and portals government to maintain a list of participating doctors There is broad acceptance of the need to keep although section 79 of the Western Australian Act does comprehensive and accurate records of the VAD process. require the government to maintain an up-to-date list of However, as noted above, practitioners involved in the authorised pharmacists for VAD purposes. Section 25(3) process argue that improved administrative systems of the New Zealand End of Life Choices Act requires the and data collection would reduce both the compliance government to maintain a list of participating doctors costs of health professionals and administrative costs for and pharmacists. A compromise position which may be the VAD Commission. The VAD administrative system in considered is providing qualified health professionals Victoria has been refined and improved over the past two with a choice in relation to whether they are recorded on years and Tasmania and other states would benefit from a list of qualified and willing providers proposed under sharing administrative systems. the VAD Bill. Providing VAD services is both challenging and rewarding 6.1.3 The role of support services in and raises numerous ethical, legal and personal issues. promoting access. Given these challenges, high quality training and professional support is essential as are collegial and The need to balance access and safety is a central policy peer support networks. Workshop attendees outlined challenge for the design of a VAD regime. A key finding how training programs from Victoria are being adapted from the Review workshop was the critically important in Western Australia and could be applied to other role of support services in promoting access. While these jurisdictions such as Tasmania. support services are described in greater detail in Section 6.3, the most important for promoting access include:

68 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 6.1.4 The benefits of hub and outreach 6.2 DATA ON VOLUNTARY ASSISTED model DYING ACCESS IN VICTORIA AND CANADA A key insight from the Review Workshop was the need to establish well trained and resourced teams who could Data on the number of people who have sought VAD in support and/or provide specialised VAD services. While a other jurisdictions, their circumstances and the terminal broad range of health and care professionals should be illnesses from which they suffered can help inform the aware of and trained in VAD options and processes (and design of VAD legislation and the implementation and in the case of qualified medical practitioners act as the administration of VAD regimes. Given they are the most PMP or CMP), there is a view that care navigation services relevant jurisdictions for which data is available, the are best provided by teams located at key service hubs. following section focuses on Victoria and Canada. Given the frailty and vulnerability of most people seeking VAD these services work on an outreach model and travel 6.2.1 Voluntary assisted dying access in to people seeking VAD in order to minimise travel and Victoria suffering and to allow those seeking VAD to die in a place The Victorian Voluntary Assisted Dying Review Board of their choosing. The Review workshop was of a view that (VVADRB) has published bi-annual data on VAD in a ‘hub and outreach’ model, where specialist staff work Victoria since it commenced operation in June 2019. Over with and support local health care workers, would be well the 12-month period June 2019-June 2020: suited to Tasmania given the State’s size and regionally- dispersed population. • There have been a total number of 124 confirmed VAD deaths since the commencement of the VAD regime. 46 deaths were recorded in the first 6 months of operation and 78 in the second.

• This represents approximately 0.271% of the 43994 deaths reported in Victoria in 2019.64

Figure 6.1: Access to voluntary assisted dying in Victoria, June 2019 to June 2020 (source: Victorian Voluntary Assisted Dying Review Board, Report of operations, January-June 2020)

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 69 6.2.2 The voluntary assisted dying process ₀ Other malignancy 25%

Over this period there were 348 requests for first • Neurodegenerative disease 17% assessment, of which 341 were deemed to be eligible. • Other untreatable disease 7% Of the 341 applicants who were deemed eligible on their Due to the eligibility criteria to access to VAD under 1st assessment, 301 requested a second assessment as the Victorian legislation, those living with degenerative required under the legislation (of which 297 were deemed conditions with a longer trajectory such as dementia are eligible). very unlikely to be eligible to access VAD (see text box 272 permit applications were received over the period ‘Dementia and voluntary assisted dying’). and 231 were approved in the first instance, with the Like other jurisdictions, VAD has mostly been sought remaining 41 being issued after a second application was by older Victorians, with those who had accessed VAD made. ranging in age between 32 and 100 with an average age 154 VAD medications were dispensed. Of these, 124 were of 72.65 administered resulting in a confirmed death. While there are no published data on the social and These data suggest that 97% of those who sought VAD economic status of those accessing VAD in Victoria, were deemed eligible by assessing medical practitioners. those with direct experience of the regime suggest, as is Approximately 36% of those who initiated the VAD the case in North America, that those seeking VAD are process in Victoria died as a result of VAD in the first wealthier and better educated than the population as a 12 months of the regime’s operation. The VVADRB is whole.66 now collecting data on non-completion which will be published in subsequent reports. This non-completion 6.2.4 Regional access to voluntary assisted rate is slightly higher than recorded in the United States dying in Victoria and Canada and may provide assurance that people As with many health and social services, there is a seeking VAD are able to opt out at any stage of the concern that citizens living in regional and remote process. Victorian VAD support workers participating communities will lack access available in major in the Review workshop felt that in some cases those metropolitan centres. This is especially true of services, seeking VAD were not able to complete the process such as VAD, which require timely and coordinated because their illness had progressed too quickly. In contributions from multiple health professionals. other cases, people decided not to pursue VAD but took comfort in the fact that it may be an option if their The Victorian data suggest that just over a third of all symptoms could not be managed. Some patients may Victorians who applied to access VAD lived in rural or find the process too complicated and lengthy. However, regional areas, with a similar proportion of practitioners evidence of other reasons for non-uptake is still being trained to deliver VAD services practising in rural or collected. regional areas. Given that 71% of Victorians reside in the Melbourne metropolitan area, the percentage of VAD 6.2.3 Health and demographic profiles of applicants and practitioners from regional communities Victorians seeking voluntary assisted dying is marginally greater than the population as a whole.67 While this suggests that people living in regional Victoria The VVADRB publishes data on the illness, disability or are able to apply to access VAD, the VVADRB and disease suffered by Victorians accessing the Victorian VAD practitioners who deliver VAD services argue that it is regime (Andrews, 2020). Those who accessed VAD over difficult to deliver VAD services in remote communities the reporting period were suffering from the following due to limited access to telehealth services and conditions: availability of qualified medical practitioners. • Malignant cancer 78%

₀ Primary lung malignancy 17%

₀ Primary breast malignancy 15%

₀ Gastrointestinal malignancy 11%

₀ Primary pancreatic malignancy 10%

70 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Dementia and voluntary assisted dying

Dementia is a syndrome (or set of symptoms) resulting from neurodegenerative changes in the brain and caused by a variety of disease processes. Alzheimer’s disease is the most common cause but there are several dozen other causes that present differently, particularly in the early stages (Kapasi et al. 2017)). Dementia is a progressive and terminal illness (the second leading cause of death in Australia (ABS 2019), with a range of survival of approximately three to 10 years (Todd et al. 2013). Dementia is characterised by impaired memory, thinking, reasoning and communication, and ultimately physical decline. For people with dementia, the ability to make decisions, plan for the future and perform daily self-care ultimately deteriorates as the disease progresses. Dementia is associated with a range of psychological and behavioural symptoms and related suffering. It is also associated with significant physical symptoms, particularly as the condition progresses (Mitchell 2009). Emerging research suggests that many people living with dementia benefit from palliative care as the condition progresses, ideally where advance care planning has been undertaken (Murphy et al. 2016).

In line with Victorian and Western Australian legislation, and the South Australian VAD Bill (and Victorian data showing who has accessed VAD), under the provisions of the VAD Bill, Tasmanians with dementia would rarely be eligible for VAD. This ineligibility is due to the need for the person requesting VAD to be both capable of decision-making and to have a terminal illness (in this case a neurodegenerative illness) from which they are likely to die within 12 months. Due to the nature of dementia’s neurodegenerative decline, it is unlikely that many with the condition would be assessed as being both capable of sound decision-making and as likely to die within 12 months. Furthermore, given the eligibility requirements within the Bill effectively prevent the use of advance care directives to access VAD, those in the early stages of dementia will not be able to appoint a person under the provisions of the Tasmanian Guardianship and Administration Act (1995) who could request VAD for them in the future.

Beyond Australia there are circumstances where people living with dementia have been able to use Advance Care Directives to support requests for medically assisted dying, namely in the Netherlands and Belgium (Mangino et al. 2020). For example, a recent study found the practice was limited but had increased between 2008 and 2013, with the authors highlighting the need to provide additional support for both those requesting assisted dying and their physicians (Dierickx et al. 2017). As noted above, this approach is not being considered in Australia.

6.2.5 Other relevant Victorian voluntary • Of all persons who held a voluntary assisted assisted dying data dying permit, 58% of people died through self-administration, and 11% died as a result of • 50% of applicants completed the entire VAD practitioner administration of the VAD substance. process within 19 days, 25% of applicants within The remaining 31% of permit-holders either chose 11 days, and 68% of specific permit requests were not to administer the VAD substance or died issued within two days (although the entire before it was dispensed. process including the cooling off period takes at least nine days). • The inability to utilise telehealth services during the process, due to a conflict with the • By June 2020, 422 medical practitioners were Commonwealth Criminal Code, has serious registered for VAD training and 125 were approved implications for some applicants wishing to access by the Victorian Health Department to participate the regime (Section 6.7). in the VAD regime. Of these practitioners, 50% were GPs, and 16% specialised in oncology, with 6.2.6 The Canadian Experience the balance specialising in other fields. Some Canadian legislation is less prescriptive than that in medical practitioners who complete VAD training Australian states. The Canadian regime requires detailed do so to familiarise themselves with the process reporting on the VAD process and the socio-demographic but do not intend to provide VAD services. profile of those seeking to access VAD, which is reported • 2.5% of Victorians accessing VAD required an by the Minister of Health on a regular basis.68 interpreter.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 71 Voluntary assisted dying access in Canada anticipate that per capita demand for VAD would be Data on the number of deaths attributed to VAD between comparable to Victoria where deaths from VAD have 2017-2019 in Canada are reported below. Significantly, the initially represented approximately 0.27% of all deaths. As VAD deaths per capita in Canada between 2017-19 are VAD becomes more established, based on the Canadian approximately 6 times higher than the deaths per capita experience, this may increase over time. Given there were in the first year of Victoria’s regime. Moreover, the number 4654 deaths in Tasmania in 2019 it could be anticipated of Canadians seeking VAD has almost doubled over the (based on the Victorian experience) that approximately three whole years for which data are available, perhaps 50 Tasmanians may seek VAD assessments in the first due to greater awareness and improved access to VAD. 12 months of the regime’s operation with about 15 completing the VAD process. Health and demographic profile of Canadians The vast majority of those seeking VAD will be in the seeking voluntary assisted dying advanced stages of terminal cancer. As in other Australian Canada’s Annual Report on Medical Assistance in Dying legislation, the eligibility criteria in the VAD Bill are such reports the underlying medical condition causing a that it is extremely unlikely that people with dementia person to seek VAD and, like Australia, the most common will be able to access VAD in Tasmania. (see text box at 69 condition is terminal cancer. 6.2.3).

Those seeking VAD in Canada were suffering from the The Victorian data suggest that people living outside following medical conditions: the Melbourne metropolitan area have, as a result of significant investment in systems and services, been able • Cancer 67.2% to access VAD services in regional Victoria although in • Respiratory 10.8% some cases people seeking VAD have been transferred to Melbourne to access services. Service provision in outer • Neurological 10.4% regional and remote areas remains a challenge owing to Commonwealth restrictions on using ‘carriage services’ • Cardiovascular 9.1% and the Victorian practice that one of the assessing medical practitioners should be a registered specialist in • Multiple co-morbities 9.1% the patient’s illness (Section 6.7.2). • Other conditions 6.1% 6.3 CONSIDERATIONS FOR PEOPLE • Other organ failure 4.6% SEEKING VOLUNTARY ASSISTED DYING 6.2.7 Considerations for Tasmania An overarching objective of the VAD Bill is to provide The above data provide insights into the number and choice for those who are suffering at life’s end while also circumstances of Tasmanians likely to seek and be eligible protecting against the possibility that VAD could be used to access VAD under the Tasmanian VAD Bill. to end a person’s life unwittingly or unwillingly (Section 3.1). While protecting health practitioners and the wider Given the eligibility restrictions and safeguards proposed community are also important considerations, the Bill in the Tasmanian VAD Bill it would be reasonable to is fundamentally concerned with providing choice for Table 6.3: Numbers of deaths in Canada due to people suffering from a terminal illness or condition. voluntary assisted dying Given these objectives, the needs and interests of people VAD deaths as seeking VAD are a central consideration in the design Total VAD deaths a percentage of and implementation of the VAD Bill but, like all complex deaths legislation and policy, there are trade-offs which require policy choices. A central aim of this report is to describe 2017 2883 1.1% these choices and identify policies and strategies which the Tasmanian Parliament and Government may consider in order to deliver effective policy compromises. 2018 2008 1.6%

6.3.1 Balancing access and safety 2019 2009 2.0% The central policy trade-off associated with VAD

72 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 legislation identified in Tasmanian parliamentary • The VAD Commission has detailed oversight and debate, in academic and policy literature on VAD, and in reporting functions submissions to this Review, is that of achieving a balance between implementing sufficient safeguards to ensure Reflecting the objective of promoting regional access, that people cannot be coerced or deceived into VAD the VAD Bill contains the following provisions designed to while ensuring that eligible people are able to access enhance access: VAD. • Broader range of practitioner qualifications are Concerns about access are especially relevant given that accepted relative to Victoria many people seeking VAD will have limited capacity to • The ‘Administering Health Professional’ or AHP can engage in complex administrative processes and medical be a Registered Nurse assessments owing to their frailty, immobility, and the pain they are experiencing combined with the emotional • There is a greater choice of VAD administration demands of preparing for death. The risk is that as more methods safeguards are applied to the VAD process, the more challenging it will become to access and to administer. • Health practitioners are able to initiate VAD Furthermore, one safeguard might not seem to be overly discussions with patients and suggest VAD as onerous when viewed in isolation, but, when considered an option, provided that they also discuss other in combination with other measures might operate to treatment options and their likely outcomes make the overall VAD process more complex making access for eligible people more challenging.70 • Telehealth (expressed as the use of an audio-visual link in the VAD Bill) is able to be utilised for all It is a matter for the Tasmanian Parliament to determine requests for VAD except for the first request, which which safeguards should be included in the Tasmanian must be undertaken in person VAD regime. Given that the safeguards included in the VAD Bill are comparable to Victorian and Western 6.3.2 Strategies for enhancing access Australian VAD legislation, and are among the most In addition to the access provisions in the VAD Bill stringent in the world, this section outlines legislative outlined above a number of practical strategies for measures and policy strategies which can support those providing support and guidance for people seeking VAD seeking VAD in Tasmania to ensure the regime also have been developed during the implementation of VAD meets its objective of ensuring access and promoting in Victoria. The Panel considers these would contribute person-centred choices. to a more accessible and person-centred regime in Tasmania. Key safeguards in the voluntary assisted dying Bill Care Navigators As outlined in more detail in Section 4.3 the VAD Bill As noted in 6.1, a key finding from the Review workshop contains a number of safeguards to protect the interests was the important role of a well-resourced Care Navigator of those seeking VAD. These include that: service to provide advice and support for people seeking • A person seeking VAD must VAD, as well as for health professionals involved in the VAD process. If Care Navigators provide quality outreach ₀ be competent, reside in Tasmania, be 18 or and regional services this greatly enhances accessibility. over and have an incurable medical condition Care Navigators also provide additional support and that has been judged to cause death within pastoral care for those seeking VAD and, with consent, six months (or 12 months in the case of their family and loved ones. neurodegenerative disease). Outreach services ₀ Make three separate requests for VAD and By its nature VAD requires complex medical advice, be assessed for eligibility on four separate assessments and support from multiple health occasions (more than any other jurisdiction) professionals. Based on the Victorian experience and the ₀ be assessed by two independent health emerging Western Australian model, it appears that the practitioners best way to provide these services in a regional context to promote access is through centralised teams providing ₀ be informed of alternative care options outreach services to support local health professionals (Section 6.4).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 73 Education and promoting awareness of end-of- contrast, the Australian Medical Association (AMA), life choices over time whilst recognising divergent views within the medical There is a broad consensus that as a community we profession, is currently opposed to VAD and believes that need to promote discussion of death and dying as well as doctors should not be involved in interventions that have 73 end of life planning and options. While VAD is only one as their primary intention the ending of a person’s life. small element of this broader discussion, a greater focus The AMA Tasmania submission to the Review reiterated on ‘dying well’ would reduce the stigma some people this position. Palliative care services in particular may experience in relation to death and end-of-life choices. wish to be seen as separate from the VAD process (see Also, a greater awareness of the trajectory and options Section 6.6) and this position is supported by the Royal 74 for dying would enable better planning and more timely Australian College of Physicians. choices. Those involved in VAD stress that it is not an 6.4.2 Conscientious objection by health care ‘emergency option’ and many people who seek to access professionals VAD do so too late in their illness and suffer as a result. Just as seeking VAD is a choice for those who are Any educational and community engagement strategy in suffering at the end-of-life and want to access it, so too relation to end-of-life choices would have to be carefully health care professionals should be able to elect to not developed with broad consultation. take part in it. The ability of health care professionals to Review and refine from a person-centred conscientiously object and not to participate in VAD is perspective internationally accepted and is a feature of all Australian VAD legislation and of the Tasmanian VAD Bill (s. 64). VAD legislation and associated policy is complex and Given there may be strongly held and divergent views deals with profoundly sensitive topics. The oversight and in relation to VAD within health care teams, robust regular review of the VAD Bill (should it be passed into principles and procedures in workplaces are also needed law) which is to be provided by the VAD Commission to support the practice of conscientious objection. should adopt a person-centred perspective and consider Submissions from doctors have highlighted this concern, the experience of those seeking VAD under the regime and this is also the view of health professionals consulted and how it could be improved, as well as the experience in the VAD Review workshop. There is a debate as to of involved health practitioners. whether health professionals should be provided with 6.4 CONSIDERATIONS FOR HEALTH additional protection in the VAD Bill against professional AND CARE PROFESSIONALS discrimination based on whether they choose to engage with VAD, or conscientiously object. Given the very 6.4.1 A diversity of views specific terms of theAnti-Discrimination Act 1998 (Tas), it would be worth considering providing additional Just as there are different views on VAD within the protection to health practitioners in the Bill along the community, doctors and other health and care lines of the New Zealand Act (Section 6.7.1). professionals also hold a range of views on VAD. In addition, health practitioner views on VAD are informed One consequence of healthcare workers’ right not by their professional identities. Views range from to participate in VAD is that it will reduce access to considering VAD to be incompatible with their roles the service, especially in regional settings. The access as healers and an established professional ethic not challenge may be exacerbated by the fact that those to deliberately end human life, to considering VAD as seeking VAD are likely to be very unwell, will require an extension of current practice that helps alleviate timely assistance, and may not be familiar with health suffering.71 Concerns of some health professionals include systems and services. To balance the rights of doctors that the introduction of VAD will erode public trust and patients, procedures for referring those seeking and community perception of the integrity of health VAD to practitioners prepared to provide it are required, professionals and that it could damage professional however, whether such procedures should be included relationships and collegiality among health practitioners. in legislation is a matter of debate. The Tasmanian VAD Bill in its current form does not require practitioners Reflecting this diversity of views, organisations exercising their right to conscientiously object to representing health professionals also hold different refer a person seeking VAD to another provider or an positions on VAD. For example, the Royal Australian organisation which can provide such information, and College of General Practitioners (RACGP) position instead places the onus on the person (perhaps with statement recognises that changes to the law are a the support of a Care Navigator) to find an alternative matter for society and government and that general practitioner. practitioners hold a wide range of views on VAD.72 By

74 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Voluntary Assisted Dying Care Navigators

Care Navigators in Victoria

In Victoria, a state-wide VAD Care Navigator service (‘CNS’) has been established in order to enable eligible Victorians’ access to VAD and to provide information, support and advice to the Victorian community, persons seeking VAD, their carers, friends and family, and health practitioners. Thus far the CNC has operated from tertiary hospitals with two Care Navigators having been appointed at the Peter MacCallum Cancer Centre in Melbourne (McDougall & Pratt 2020), and a further five in the regions. Persons need not be inpatients of the Centre to seek assistance from the CNS, nor must they be suffering from cancer (Department of Health & Human Services 2020). Incidentally, the CNS has been developed during the implementation of Victoria’s VAD regime and is not mentioned in the Victorian legislation.

The CNS can provide both general and individualised information to a person about VAD in Victoria, either which can be provided face-to-face or by post, and the service can be contacted by email and phone. For example, the CNS can assist a person to identify the appropriate referral pathways. The CNS also plays an important role in providing and linking people to information and advice about a range of end-of-life care options, and in facilitating access to financial support packages which may be used to, for example, meet the costs of transferring a person seeking VAD from a non-participating to a participating institution. The CNS can also provide assistance, advice and support to people throughout the eligibility process, and in situations in which the person does not have anyone to appoint as a self-administration contact person (Department of Health & Human Services 2020).

The CNS also provides support to health practitioners, with respect to receiving referrals to access support programs. The policy guidelines released by the Victorian Department of Health emphasise the role of the CNS in linking people with participating health services and practitioners, especially where the person has first approached a non-participating institution or medical practitioner (section 6.5, Department of Health & Human Services 2020).

The VAD regime in Western Australia is not expected to be operational until July 2021, though information released by the VAD Implementation Leadership Team indicate that WA will also establish a CNS.

Care Navigators in Canada

In Canada there is no federal care navigator system, and the degree to which the provinces and territories make provision for such a service varies. In Newfoundland and Labrador, Nova Scotia, New Brunswick and British Columbia, regional health authorities play a significant role in coordinating medical assistance in dying (‘MAiD’), whereas Manitoba, Saskatchewan and Alberta have established dedicated MAiD coordination systems. Their roles are similar to the Victorian CNS, and mainly consist of providing information, linkage, and referral to facilitate access. Smaller territories’ systems are generally less broad-spanning, existing primarily to link patients with MAiD providers (Health Canada 2020).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 75 Mandatory referral provisions are not a feature of VAD be Administering Health Practitioners (AHPs) in legislation in other jurisdictions which rely on policy the VAD process. This means that a RN can assess guidelines and professional codes to ensure referral, but patients’ requests for self-administration, assisted self- there are precedents in similar legislation concerning administration, and direct administration by the AHP. It another potentially vulnerable patient group requiring also allows RNs to directly administer the VAD substance timely assistance. The Tasmanian Reproductive Health to the patient (in cases where the patient has elected for (Access to Terminations) Act 2013 (Tasmania) specifies direct administration by the AHP) or assist the person to that if doctors and counsellors hold a conscientious self-administer (in cases where the patient has elected objection to abortion, they are required to refer pregnant supported self-administration). women seeking information about pregnancy options to another doctor or counsellor without conscientious There was unanimous support among participants in objection. Most states (with modern termination of the Review workshop for registered nurses to participate pregnancy legislation) also have a legislative requirement as AHPs, with all seeing this as an improvement on for doctors to refer if they have conscientious objections. the Victorian legislation that would enhance access to Doctors are familiar with and accepting of this legislative VAD. This is especially important for a small jurisdiction requirement in the reproductive health context. In such as Tasmania, where there is limited access to contested areas of practice, it can be helpful to individual VAD qualified medical practitioners, particularly in practitioners and organisations to have an unambiguous regional communities. However, there is a concern legal requirement to undertake an action, rather than that the requirement in the VAD Bill that the AHP such a decision being based on the ethical deliberations must make an additional assessment of eligibility prior of the individual doctor in the context of any employing to the administration of the VAD substance may be organisation. This also allows a minimum standard of problematic as it may require a complex competency action for all patients, rather than a different outcome assessment that many RNs may not be comfortable to depending upon which practitioner or service is provide and notwithstanding that eligibility has already approached. For these reasons it may be considered previously been assessed and supported by two doctors appropriate to include a legislative requirement for independently. This requirement may limit the number of medical practitioners to provide an appropriate referral RNs willing to act as AHPs, potentially restricting access service to people seeking VAD. to VAD services in regional settings. A solution could be to require the AHP (registered nurse or otherwise) 6.4.3 Register of health practitioners to gain the consent of the person immediately prior to the administration of the VAD substance, rather than Health professionals are concerned about the conducting another full assessment. requirement under the VAD Bill for the VAD Commission to maintain a list of practitioners who are willing to 6.4.5 Qualifications of medical practitioners participate in VAD (s. 113). The concern is two-fold. involved in assessments The first concern relates to the risk that such a list may become public and the second is that a list may In Victoria both the Coordinating and Consulting imply that practitioners are willing to provide VAD Practitioners involved in the VAD process must hold services to all eligible people irrespective of the specific fellowships with specialist medical colleges or be circumstances of the case and their relationship to the vocationally-registered general practitioners, and one person seeking VAD. Given these concerns there is a risk must have at least five years’ experience and one must that this provision may deter doctors from participating have relevant expertise in the disease, illness or medical in the Tasmanian VAD regime. As noted above (6.1), condition of the person seeking to access VAD (s. 10). The neither the Victorian nor Western Australian legislation guidance document for Victorian health practitioners includes such a provision, with Care Navigators providing states that ‘to have expertise and experience in the informal referral advice in the absence of a formal list of patient’s medical condition the medical practitioner possible providers. A compromise position which may is required to be a medical specialist in the patient’s 75 be considered is providing qualified health professionals medical condition’. In addition, s 27 of the Victorian with a choice in relation to whether they are recorded on Act requires that where the CMP is unable to determine list of qualified and willing providers proposed under the whether the person’s disease, illness or medical condition VAD Bill. meets the requirements of the eligibility criteria, the CMP must refer the person to a specialist who has skills/ 6.4.4 The role of registered nurses training in that disease, illness or medical condition. In practice, these stringent eligibility requirements have Unlike in Victoria and Western Australia, the VAD made it difficult for some seeking VAD to find doctors Bill allows registered nurses (RNs) in Tasmania to

76 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 qualified in their conditions (see Section 6.1). The situation practitioners where there is no support from professional is quite different in Western Australia, where medical organisations.78 practitioners can act as the Coordinating or Consulting Practitioners if they hold specialist registration and have 6.4.7 Funding for voluntary assisted dying practised for at least one year, or if they hold general services registration and have practised for at least 10 years As noted above (6.1.3), the provision of safe, person- (or they are an overseas-trained specialist who holds centred VAD services is resource intensive and requires limited or provisional registration) (s.17). While medical a significant amount of planning, consultation, pastoral practitioners involved in VAD assessments are unlikely care and, in many cases, travel. While the costs associated to have difficulty establishing that an advanced terminal with some elements of the VAD process can be claimed illness or condition is causing significant suffering, through Medicare, there are many expenses which establishing whether death will occur within six months, cannot. To address this shortfall the Victorian Government for example where there are new advanced cancer also provides support packages to health practitioners treatments, is challenging and requires more experience. providing VAD services to fund aspects of the VAD The view of the Review workshop was that the Tasmanian process that Medicare does not cover. VAD Bill provides a sensible ‘middle path’, as it strikes a balance requiring a doctor to have experience in the 6.4.8 The ability for health practitioners illness while also recognising that not only specialists to initiate discussion of voluntary assisted can diagnose. For example, GPs and palliative care dying physicians are not specialists in an illness per se but have had enough experience in certain illnesses to make VAD legislation in Victoria, Western Australia, and New competent diagnoses and VAD eligibility assessments. Zealand, as well as the SA Bill, does not allow health practitioners to initiate discussions with patients about 6.4.6 Training and support for health care VAD. The Victorian Expert Panel in its Report explained professionals that this provision would help ensure a person is not coerced or unduly influenced into accessing VAD and to Adequate training and resources are key to providing show that a request for VAD is the person’s own wish.79 high quality care for people seeking VAD and support White et al. (2020) found that this exclusion conflicts for practitioners who are willing to participate in VAD. with the stated policy goal of respecting autonomy; Training must be made available to various professionals, supporting informed decision-making; encouraging open including doctors, nurses, aged care workers, discussions about dying, death and people’s preferences; psychologists, social workers, ambulance officers and supporting conversations with health practitioners interpreters, given their respective roles in care teams. and family about treatment and care preferences; and Beyond the mandatory training for those directly involved promoting genuine choices. in providing VAD services, VAD education should be included in undergraduate health care courses as well as The Tasmanian VAD Bill does allow medical practitioners professional training provided by the Colleges. This more to initiate discussions of the possibility of VAD provided universal approach to training is necessary because all that they also inform the patient about available health practitioners, including those who choose not to treatment options and palliative care options and the take part in the VAD process, will need to understand likely outcomes of those treatments (s. 17(1)-(2)). Further, the law concerning VAD, including referral requirements, it allows a registered health practitioner who is not a and available VAD services. Indeed, a recent survey of 226 medical practitioner to initiate discussions about VAD as Australian geriatricians found that a key concern around an option provided that they inform the patient during VAD was the need for further training to assess patient that discussion that a medical practitioner would be eligibility.76 the most appropriate person with whom to discuss the VAD process and care and treatment options (s. 17(3)). Support for health care workers involved in VAD from The Review workshop participants were supportive of their professional organisations is also important for the the VAD Bill’s provisions in regard to the initiation of provision of high-quality care. Palliative Care Australia VAD discussions. The view was that all people should found that in jurisdictions where there is no structured have access to information so that they can weigh up support in relation to VAD for health care workers there all options when making their treatment decisions can be negative effects on those workers, reflecting and that discussions about death and dying should be the fact that providing VAD services is undoubtedly open, transparent and are to be encouraged. Workshop challenging both ‘professionally and personally’.77 Further participants also commented that, due to the prohibition studies have shown the detrimental effects on health on medical practitioners initiating discussion of VAD

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 77 in Victoria, in their practice Victorian doctors were 6.5.1 Organisational non-participation concerned about improperly discussing VAD and that sometimes this left patients and families ‘in the dark’ as A significant consideration posed by VAD legislation some health professionals were reluctant to talk about for hospitals and aged-care facilities is whether, as VAD even after the initial request had been made by the organisations, their ability not to offer VAD services (and patient. subsequent obligations to residents or patients) should be codified in legislation. The issue of institutional ‘non- 6.4.9 The impact of the request and participation’ has been discussed in other jurisdictions, assessment process on medical analysed in academic and policy literature, debated in the practitioners Legislative Council and raised in fourteen submissions to this Review. The Tasmanian VAD Bill requires that three formal requests be made by the patient for VAD and four Individual non-participation in VAD on the basis of assessments be undertaken of a patient’s eligibility for conscientious objection is an almost universal feature VAD before a person can finally self-administer a VAD of existing Australian and international legislation, substance or have it administered to them by an AHP. and is provided for in the Tasmanian VAD Bill (ss. 19- While this extended request and assessment process 20, 39-41). However, the issue of organisational non- will have impacts on persons requesting VAD who are participation has not previously attracted legislative very ill and seeking a timely response, there will also be attention because organisations are not obliged to offer impacts on medical practitioners. The number of requests VAD services. Nevertheless, the issue of organisational required is greater than that in comparable jurisdictions non-participation is now attracting more attention out with two required in each of Victoria, Western Australia of concern that it may restrict access to VAD (especially and in the SA VAD Bill. The number of assessments in regional settings) or, in cases where people have to be required in the VAD Bill is double the number required transferred between organisations to access VAD, that it in Victoria, Western Australia, New Zealand, and also in may increase suffering.80 the South Australian VAD Bill. The view among medical practitioners at the Review Workshop, was that the The issue of organisational non-participation was additional requirements of the Tasmanian VAD regime debated in the Legislative Council when the Hon. would be a disincentive to medical practitioners to Bastien Seidel proposed an amendment (Clause participate in VAD processes. There was also significant E) stipulating that if organisations decide not to provide concern that the length of time needed for the additional or support VAD services to a patient or resident seeking assessments may lead to distress among patients who VAD they would be under a legal duty to facilitate were very ill and suffering and may be unable to complete and take reasonable steps to effect the person’s the process and access VAD prior to their death. transfer to a participating institution (discussed in more detail at 3.3.4). Notably, this amendment was 6.5 CONSIDERATIONS FOR HOSPITALS unsuccessful, with Members arguing the amendment AND AGED CARE FACILITIES was unnecessary because it was not a feature of legislation in other Australian jurisdictions and, rather Available data suggest that the majority of people who than affording institutions a positive right to not to access VAD at the end of life do so in their own homes, participate in VAD, it is preferable to allow individual although it is unclear how many are transferred from organisations to opt out of VAD as they see fit. However, hospitals and aged care facilities immediately prior to it is important to note that the emerging Australian and death. While most people access VAD at home, others, Canadian academic literature argues that institutional especially those with complex and advanced illness, non-participation in VAD could limit access to VAD and seek to access VAD in hospital or hospice settings. An that organisational non-participation should be subject to estimated 15% of those seeking VAD reside in residential legislation.81 aged care settings. Given the central role of hospitals, hospices and residential aged care facilities in providing Under the provisions of the current Tasmanian VAD Bill end-of-life care, VAD and the VAD Bill raise a number of individual participation is entirely voluntary. However, issues for these organisations. Reflecting recent debate given the Bill is silent on the issue of organisational and submissions to this Review the primary focus of this non-participation there is no obligation on institutions, section is on organisational non-participation in VAD. such as hospitals and aged care providers, to make other arrangements if patients or residents seek access to VAD. A range of views on organisational non-participation are evident in the submissions the Review received.

78 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Five submissions explicitly argued that entities, unlike which will necessarily opt for non-participation) provide natural persons, should not be able to conscientiously approximately one third of all hospital beds in Tasmania object. These submissions commonly cited the desire and represent approximately 30% of all aged care to put the needs of people ahead of organisational facilities.85 beliefs, the state-funded nature of many health services, and the sufficiency of medical practitioners’ rights to In addition to hospitals and residential aged care facilities, conscientiously object as justification for their position. a significant number of Tasmanians receive home- Nine submissions argued that entities should be based care and support provided by community care able to object; Calvary Health Care stated that while organisations. It is unclear how such care may or may accepting that there is a plurality of views on VAD it not impact on an individual’s preference to access VAD. would not offer such a service, nor would it facilitate or Given that evidence from other jurisdictions shows that participate in assessments for patients seeking VAD. many access VAD in their own homes, this could be an However, reflecting their core principles, Calvary staff important consideration. would respond openly and with respect and sensitivity 6.5.2 Established approaches to institutional to anyone who wished to consider exploring VAD and non-participation in Australia ‘will actively listen to and accompany any person who is nearing end of life, and will not abandon anyone who As noted above, Victorian and Western Australian is in need of care’ (Calvary Health Care Submission, VAD legislation is silent on the issue of institutional non- 82 p.4). Other submissions recognised the right to non- participation and hospitals and residential care facilities participation while suggesting that any organisation are under no obligation to participate in or support VAD. that elected not to provide VAD services should have a legislative obligation to refer the person to a participating In Victoria, at the level of policy, the Department of organisation. Go Gentle Australia suggested that non- Health makes explicit reference to the ability for health participating institutions must widely publicise their service providers to object to the provision of VAD.86 stance in relation to VAD, and inform persons of this This policy framework establishes three pathways. It is position prior to admission. envisaged that tertiary health services will be able to adopt pathway A and provide VAD within their existing From the submissions received by the review, it is clear services, whereas smaller health services that currently that some (but not all) faith-based hospitals and aged provide end of life care will be able to adopt pathway care facilities will pursue a non-participation policy. B, a partnership service which facilitates the request Moreover, evidence from the workshop conducted by and assessment process. Health services who lack the the Review Panel on the implementation of VAD in ability to provide the aforementioned services, or who Victoria suggested that in practice some faith-based opt for non-participation in the VAD regime, are likely providers were prepared to facilitate VAD when it was to adopt pathway C,87 which entails simply providing in a patient’s best interest while some secular, for-profit information and support. This pathway emphasises the providers did not support VAD services for operational role of the VAD Care Navigator (Section 6.1.3), who is and commercial reasons. The extent to which this will contacted by the non-participating health service in limit access by Tasmanians who seek VAD is uncertain. order to link the person with information and medical Victorian anecdotal evidence suggests that private practitioners or health services that can provide access residences are the most likely locations for accessing to VAD.88 Therefore, the Victorian regime employs the VAD but detailed data on administration locations is VAD Care Navigator service to mitigate against any not published, making it difficult to gauge the extent impacts legitimate organisational non-participation has to which non-participating organisations would limit on the access of Victorians to VAD. Ultimately however, 83 access to VAD. Data from Canada show that medical institutions in Victoria are under no legal duty to refer the assistance in dying (‘MAiD’) mainly occurs in hospitals and patient to someone who can assist them, including a Care private residences, followed by palliative care facilities and Navigator, and the Department simply provides that the 84 residential care facilities. As noted below, approximately health service should inform the person that they will not 13% of people who accessed MAID in a major public assist them and should not inhibit a person’s access to hospital in Alberta were transferred from faith-based VAD. institutions. Western Australia’s VAD regime is not expected to As in other Australian states and territories, faith-based be operational until July 2021, but its legislation is similar and other private organisations make an important in this respect to Victoria’s. Recent information released contribution to Tasmania’s hospital and social care by the VAD Implementation Leadership Team indicates system. Specifically, faith-based institutions (not all of that, as in Victoria, a Statewide VAD Care Navigator

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 79 Service will be established.89 This suggests that Western 6.5.4 Compromise models and practical Australia intends to mitigate access issues arising from considerations organisational non-participation in the same way as Victoria. Notwithstanding the policy approach currently being practiced in interstate and overseas jurisdictions, a growing body of academic research is advocating for a legislative approach to clarifying the extent to which 6.5.3 Established approaches to organisations can opt not to participate in VAD.94 White organisational non-participation in Canada et al. have proposed a model which seeks to establish a balance between an organisation’s decision to not As in Australia, the Canadian Federal legislation does not provide or support VAD, with the need to ensure access to compel any person to participate in the VAD process. VAD for all persons, and to respect persons’ autonomy in Though Carter v Canada enshrined the right of entities seeking VAD.95. to conscientiously object in limited circumstances, provincial and territorial governments have been afforded This approach is a refined version of White et al.’s 2019 some autonomy in determining the extent to which model96 and aims to provide a ‘compromise or reasonable entities are able to object. As such, some provinces have accommodation’ model for organisational objection to opted to create Care Coordination Services to receive VAD. This approach involves: referrals from non-participating organisations, some have delegated the roles of a Care Coordination service • Establishing legislative obligations of non- to its pre-existing health frameworks, and the smaller participating organisations should they choose territories have adopted less formal measures, largely not to provide or allow access to VAD services. concerned with ensuring that patients are linked with Legislation would not grant organisations a participating providers.90 Some jurisdictions have gone positive right to refuse to provide access to further; for example, the Ontario Ministry of Health VAD, (reflecting the concern of Members in the provides that non-participating organisations should Tasmanian Legislative Council with respect to develop and publicise policies in relation to MAiD, implicitly recognising or even inducing such and affirms that clinicians must meet professional referral objection); obligations required by their regulatory colleges. The College of Physicians and Surgeons of Ontario mandates • Requiring that non-participating that clinicians refer a person where they conscientiously organisations provide persons with information object to providing assistance in relation to MAiD.91 about VAD and ensure appropriate referral, including to services such as VAD Care Navigator The evolving practices and policies in relation to networks; organisational non-participation in Canada have occurred in part because many faith-based organisations, including • Setting out a process which institutions must hospitals, hospices and long-term care facilities, do follow should they not wish to participate in VAD; not allow MAiD on their premises. A study by Sumner • Developing and applying a list of relevant highlights the difficulties people have faced in considerations to a determination about whether accessing MAiD in faith-based hospitals, including the person should be transferred to another examples where people seeking MAiD have suffered as facility, or remain at the facility with support to a result of transfer or have died before receiving MAiD leave for VAD-related appointments; and at a participating organisation.92 Indeed, in Alberta, of the 842 persons who accessed MAiD in a major hospital • Where it is determined that the person should facility (between 17 June 2016 and 30 September 2020), remain at the objecting institution, the facility will 125 of these persons were transferred (15%), and 109 be obligated to permit the person to access VAD. were transferred from a faith-based facility (13% of the total, 87% of those transferred).93 As discussed in greater Providing information, as well as referral and transfer detail below, the number of Tasmanians who must be services, will enable patients and residents at non- transferred between organisations to access VAD should participating organisations to access VAD, although be monitored should the VAD Bill be passed into law. in some cases transfer may be impractical for people seeking VAD and may make it difficult to maintain the therapeutic relationships between a person and their registered health practitioner.

80 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 6.5.6 Practical considerations for hospitals non-participating organisations who cannot be and aged care facilities transferred without subjecting them to additional suffering. The VAD Review Workshop conducted as part of the Review process highlighted a number of considerations It is ultimately the role of the Tasmanian Parliament for hospital and aged care facilities including the to weigh the rights and interests of individuals and need to work with care navigators and other officials organisations, a person’s autonomy, an organisation’s supporting VAD to develop clear but flexible policies and right to self-governance, and the many other practices. Flexibility is important because in many cases intervening considerations of relevance to organisational 97 hospitals have placed the welfare and wishes of their non-participation. A further consideration is the extent patients above other considerations. For organisations to which these rights and obligations should be codified that decide not to provide VAD services, clear patient in legislation or be allowed to evolve in policy and practice access and transfer guidelines should be developed. over time. For organisations that do support VAD, appropriate 6.6 CONSIDERATIONS FOR PALLIATIVE pre and post VAD briefings and support for all staff CARE AND END-OF-LIFE PLANNING involved is important. While it is estimated that less than 20% of VAD occurs in residential aged care settings, The Terms of Reference (5.2) required the Review to those involved in the process recognise that there are consider the interrelationship between the Tasmanian particular sensitivities in relation to how other residents VAD Bill and existing palliative care and advance care and staff may respond to VAD which need to be carefully directives in Tasmania and the experience of other managed. jurisdictions in relation to these matters. Reflecting this objective this Section provides a brief overview of the 6.5.7 Considerations for the Tasmanian aims and limits of palliative approaches and the possible Parliament in relation to organisational implications of introducing a VAD regime. non-participation 6.6.1 The origins and aims of palliative care The issue of organisational non-participation was one of the most complex considered by the Review Panel. The Palliative care (PC) is a prominent response to Review Panel’s conclusions are: the needs of those diagnosed with a life-limiting condition. It is a holistic approach, encompassing • No organisation or entity should be compelled physical and emotional needs, designed to reduce to participate in or provide VAD even though symptoms and associated suffering encountered with a non-participation limits access, may compromise range of incurable conditions.98 Contemporary PC was therapeutic relationships and, where transfers are first developed in England in the 1960s and was required, may exacerbate suffering. incorporated into healthcare practice in Australia and • Whether the right to organisational non- elsewhere from the 1980s. It came about as a reformist participation should be enshrined in legislation movement in response to the prolonged suffering of is an open question. It is unnecessary in that those with terminal cancer at the end of their lives, when 99 no organisation is compelled to participate and cure was no longer an option; it has since progressed to there are few precedents for it (Oregon is an address incurable conditions such as neurodegenerative 100 exception). However, some academic research and other non-malignant disorders. and submissions to this Review argue that an A number of philosophical traditions have informed organisation’s obligations to a patient, should they palliative practice, but a core element of most approaches decide not to support VAD, should be set out in is commitment not to intentionally hasten death, legislation. but rather to maximise quality of life.101 Ethically, this • In practice, policies and procedures should be places palliative practice in a different category to VAD, developed for referral and transfer procedures given its goal is, albeit under limited circumstances from non-participating organisations to facilities and with a patient’s consent, to induce – and thereby which provide VAD services. Evidence suggests hasten – death. For this reason, it is important to regard the effectiveness of these services depends on PC and VAD as distinct options. Indeed, PC by its nature access to well-resourced Care Navigators. includes a range of treatments and interventions which may be provided before the final stages of life and, in • The most challenging scenario is providing some instances, may be provided alongside curative options for people who are seeking VAD in treatments.102

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 81 6.6.2 The debate about the limits of the Federal Government committed $6 billion in funding palliative care over 10 years for home and palliative care, a significant increase from previous funding.109 Indeed, Federal MAiD Access to high quality palliative care becomes more legislation in Canada requires ongoing review of both important as the end of life approaches and curative VAD provisions and the state of palliative care services treatments become progressively futile and are ceased. to ensure that both options are accessible and well This is when access to specialist PC and services may be resourced. required.103 It is not the role of the Review to assess the adequacy of PC services in Tasmania, although numerous submissions advocated for greater investment in PC 6.6.4 The possible tensions between and the full implementation of the recommendations contained in the Report of the 2017 House of Assembly palliative care and voluntary assisted dying Inquiry into Palliative Care (Section 5). Despite evidence that the introduction of VAD increases awareness of need for and investment in PC and other The central issue in relation to the debate about VAD end-of-life care options, there are associated tensions which was also raised in submissions to this Review and issues which need to be considered and addressed. is whether high quality palliative care can control A well-documented challenge for those providing symptoms and effectively address suffering, and when PC is that referrals are often made too late in the it does, are the side-effects desirable and acceptable? development of an illness to provide effective treatment.110 There is an agreement that high quality PC may reduce The reasons for this are complex and are thought to the need for VAD but evidence suggests between include stigma,111 equating PC with hopelessness,112 10-20% of end of life symptoms cannot effectively be abandonment,113 and/or imminent death.114 The concern is controlled, contributing to possible cases where VAD that in the absence of clear communication and support, still may be sought.104 Indeed, comparative research the availability of VAD (albeit as a very different option to conducted by Palliative Care Australia suggests that most PC) may further discourage some patients from seeking patients internationally accessed palliative care before palliative care because they mistakenly associate it with seeking assisted dying.105 VAD. 6.6.3 The potential benefits of VAD for palliative care In terms of resources, a recent Canadian study by Mathews et al. (2020) found that despite an increase in Palliative care and VAD provide distinct end of life options federal funding for palliative services noted above, at an which should not be conflated. However, jurisdictions operational level, some practitioners felt more resources with both established palliative care systems and VAD had been directed to VAD as nurses in particular spent regimes which have been operational for more than 10 a good deal of time supporting those seeking VAD, years include some US states, Belgium, Luxembourg and while some specialist physicians expected PC teams to 115 the Netherlands.106 In 2018 Palliative Care provide VAD. In Belgium, Bernheim et al. (2017) reported Australia (PCA) commissioned a study on the impact of an increased demand for community-based care and VAD on the PC sector internationally. It found that where extra pressure placed on existing palliative care workforce 116 VAD had been legalised, rather than having a negative and resources following the introduction of VAD. impact on PC services there had been ‘an increased focus on, and public policy attention towards, end-of-life care’.107 Further, PCA states:

It is noted that the implementation of legislation may drive a stronger focus on upholding patient choice and autonomy, and there may be opportunities to introduce system improvements in palliative care, either as a direct or indirect consequence of the planned implementation of assisted dying108.

This greater focus on end-of-life care includes physicians seeking to improve their knowledge and understanding of end-of-life care support services, and provision of additional funding. On the introduction of VAD in Canada,

82 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Considerations for advance care planning

Advance care planning (ACP) is a process to allow individuals to express their future wishes in relation to health care to aid decision making when the person loses the capacity to communicate. These wishes are generally in relation to end-of-life (Australian Government Department of Health, 2021). There is broad agreement that ACP promotes more certain and person-centred care at life’s end but more needs to be done to promote and support ACP (Carter et al., 2016).

In Australia, each state has its own ACP/ADC processes and guidelines. For example, in Victoria, the ACP and ACD process has been established under the Medical Treatment Planning and Decisions Act 2016 (Vic) (Eastman et al., 2020). In contrast, in Tasmania, ACDs are currently supported by common law although a bill is being developed to provide a legislative basis for ACDs in TAsmania(QUT, 2021; Archer 2020).

ACP is the process of discussion between the patient, their family, and health professionals about their wishes, while an advance care directive (ACD) is a formal document recording these wishes. The process also involves the appointment of a substitute decision maker (SDM) (known as an ‘enduring guardian’ in Tasmania) to aid in the communication of these wishes when the individual loses capacity (Carter et al., 2016). In practice, ACD scope extends to consenting to or refusing treatment/s as opposed to any more proactive requests for treatments of any sort (Advance Care Planning Australia, 2021).

In Australia, owing to ACP only coming into operation in the event of the individual losing capacity and a substitute decision maker being appointed, ACP does not have a role in VAD; an individual cannot request VAD via this mechanism. However, as noted above, there are different traditions in relation to palliative care and VAD internationally and via various provisions, advance directives or ‘living wills’ can be used to request euthanasia in the Netherlands (Rurup et al., 2006) and Belgium (De Bandt, 2003). There is, however, no provision or support for this approach in Australia.

ACP remains an important part of individuals planning for end-of-life care that has relevance for any health care context, and in palliative and aged care in particular (PCA, 2018).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 83 6.7 LEGAL CONSIDERATIONS The inclusion of a provision along the lines of the New Zealand protection would help ensure health Enacting VAD legislation raises significant legal issues practitioners do not incur detriment in their employment as it involves creating a statutory exception to the for their decision to participate in VAD or, conversely, not criminal law prohibition on the deliberate taking of life to participate on the grounds of conscientious objection. at a person’s request which would otherwise amount to murder under the Criminal Code of Tasmania. 6.7.2 Possible restrictions on use of telecommunications in connection with This section focusses on specific legal considerations voluntary assisted dying (Commonwealth potentially impacting on the operation of the legislation, Criminal Code) in particular: The VAD Bill includes a number of references to use of • Scope of protection for health practitioners for audio-visual communications between the PMP and the both participation and non-participation in VAD patient (s34 and 56), between the CMP and the patient (s48) and between the participating pharmacist and • Possible restrictions on use of telecommunications the patient (s71). Essentially, the Bill allows for the use in connection with VAD (Commonwealth Criminal of audio-visual link (not defined) in order to meet with Code) the person seeking VAD for the purposes of making • Legal status of the ‘double effect’ principle arising determinations under the Act. Notably, however, the use in palliative care of audio-visual link is expressly excluded for making a first request to access VAD where that request is made orally • Impact of VAD for individuals in relation to life (s18(2)(b)) and the Bill also specifies that the person must insurance have received the relevant facts in relation to accessing VAD from the medical practitioner in person and not by 6.7.1 Scope of protection for medical way of audio-visual link (s18(2)(a)). practitioners The use of telecommunications in the VAD process The Tasmanian VAD Bill includes provisions protecting has been raised as an issue in connection with both health care professionals and others from legal the Victorian and West Australian legislation. The West liability who, in good faith and without negligence, Australian Act includes a number of references to audio perform an act or omission under the Act (s134(2)). visual communication (for example s22(2), s50(20 and This is in accordance with the provisions of other VAD s158(2)) however, the Victorian Act makes no specific legislation and is necessary to ensure that those providing reference to the use of audio-visual or other forms of VAD assistance in accordance with the legislation are telecommunication). protected from legal sanction. The Department of Health and Human Services The VAD legislation of some jurisdictions goes further Victoria has advised that use of telecommunications in in providing legal protection from discrimination connection with VAD could be a breach of Federal laws to health care professionals for their participation which forbid the use of telecommunications to spread or non-participation in VAD. In particular, the New ‘suicide-related materials,’ in particular, section 474.29A Zealand End of Life Choice Act 2019 has a detailed of the Criminal Code Act 1995 (Cth)117 which prohibit use conscientious objection provision (s8) which prohibits of a carriage service (including telephone or internet) to an employer from denying an employee employment, counsel, promote or provide instruction on suicide. The accommodation, goods, services or other benefit on Department has accordingly directed that in person the grounds of the employee’s conscientious objection approaches are required. These Criminal Code provisions to participating in VAD. Further, an employer must not predated the legalisation of VAD in Victoria and Western provide employment, accommodation or other benefit Australia and are reported to have been introduced conditional upon the employee providing or agreeing to in response to a campaign led by right-to-die activist provide VAD assistance. This provision helps to protect Dr Phillip Nitschke who was promoting methods for health practitioners from being discriminated against by terminally-ill individuals to end their lives.118 their employer for their participation or non-participation in VAD. The Law Institute of Victoria has written to the Victorian Health Minister, the Australian Health Practitioner Tasmania has the Anti-Discrimination Act 1998 but Regulation Authority (AHPRA) and the Commonwealth because of its very specific scope of operation, this does Director of Public Prosecutions (CDPP), seeking urgent not provide protection against all forms of discrimination. clarification on whether Victorian health practitioners

84 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 who discuss VAD under the Voluntary Assisted Dying Act double effect in Australia with the aim of differentiating 2017 (Vic) with patients via a carriage service such as over this from VAD. the phone, via email or through the use of telehealth, may be in breach of the Commonwealth Criminal Code.119 The doctrine of double effect, which had its origins in Similarly, in Western Australia a cautious approach is moral theology, recognises that palliative medication being taken to ensure that those participating under administered to a patient with the intention of relieving the legislation avoid breaching the Commonwealth pain and symptoms will be lawful even if that will have legislation.120 the unintended effect of hastening the patient’s death. Central to this doctrine is the focus on intention: provided Resolution of this issue comes down to an interpretation the primary intention is to relieve pain and symptoms of the relevant VAD legislation and whether the rather than to cause death, the doctrine holds that participation of medical practitioners can amount to the medical practitioner or other authorised person provision of material related to suicide. VAD is widely administering the palliative medication will not be regarded as quite distinct from suicide. This is made clear criminally liable even where death was foreseen. Based in the Tasmanian Bill (s138) and the West Australian Act on the circumstances of the cases where this doctrine (s12) but no equivalent provision exists in the Victorian has been relied on, it is generally understood that the VAD legislation. These provisions in the Tasmanian Bill doctrine of double effect only applies to a person who is and Western Australian Act are framed in terms of ‘for the near death.122 purposes of the law of this state’ VAD is not suicide. There are however, differing legal views on the effect of this vis a Palliative medication administered to a patient with the vis the Commonwealth law.121 intention of relieving pain but which may hasten death is an accepted part of medical practice. It is important If it is accepted that death by VAD is legally distinct from that this is clearly differentiated from VAD, which involves suicide, the participation of doctors under the legislation the intentional assistance to bring about death at the through the provision of information and materials using request of the patient. The critical distinction is intention; a carriage service would not be in breach of s474.29A for palliative medication, the intention of the medical of the Criminal Code Act 1995 (Cth). However, in view of practitioner is to relieve pain, not to cause death. The the legal uncertainty and the cautious approach being consent of the patient is not a pre-requisite; indeed, the taken by authorities in Victoria and Western Australia, the patient may not be in a position to consent. VAD, by Tasmanian Government may wish to seek its own legal contrast, involves the deliberate and intentional bringing advice on the matter from the Solicitor General. This is about of the death of the patient at the patient’s clear potentially a serious issue which could significantly curtail and explicit request further to the detailed substantive the use of telecommunications for VAD which has been and procedural legislative requirements. an important part of ensuring regional access. Whilst the doctrine of double effect is supported by case In clear anticipation of any potential problems in this law in the UK (Adams Case)123 and other common law area, the Tasmanian Bill provides in s 137 that nothing jurisdictions, there is no Australian authority directly on in the Act is taken to authorise the use of a method this issue. However, South Australia, Queensland and of communication if, or to the extent that, the use is Western Australian have legislated to clarify the law in contrary or inconsistent with a law of the Commonwealth. this area, providing that authorised persons who provide This would operate to avoid legal inconsistency between palliative medication will not be criminally liable provided the Tasmania VAD Bill and the Criminal Code Act that certain criteria specified in the legislation are 1995 (Cth) but does not clarify the current uncertainty as met. Under the legislation of Queensland and Western to whether conduct undertaken by health practitioners Australia the palliative medication must have been in accordance with the legislation may amount to provided in good faith, with reasonable skill and care, a contravention of the provisions prohibiting use of and be reasonable having regard to the person’s state at a carriage service to counsel, promote or provide the time and in the circumstances of the case (Criminal instruction on suicide. Code (Qld) s282A; Criminal Code (WA) s259). The South Australian legislation requires additionally that the person 6.7.3 Legal status of the ‘double effect’ is in the terminal phase of a terminal illness and that the principle arising in palliative care palliative medication is administered with the consent of the person or their representative (Consent to Medical Elsewhere in this report (Section 6.6), consideration has Treatment and Palliative Care Act 1995 (SA) s17). been given to the provision of palliative care in Australia and its relationship with VAD. For the purposes of this The introduction of such legislation clarifying the status analysis, the focus is on the legal status of the doctrine of of palliative medication administered with the intention

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 85 of relieving pain but which may hasten death is especially Section 138 of the Tasmanian VAD Bill includes a specific important in Australian jurisdictions which have a provision to the effect that for the purposes of the law criminal code, such as Tasmania. This is because homicide of this state, a person who dies as a result of VAD does is defined as culpable not only when it is caused by an act not die by suicide (s138). A similar provision exists in intended to cause death or bodily harm, but also where it the Western Australian legislation (s12). Although the is caused by an act commonly known to be likely to cause Tasmanian Bill is silent on the issue of recording death death or bodily harm, and which is not justified under following VAD, it appears to be generally accepted that the provisions of the Code (see Criminal Code (Tas) s156). the cause of death is the underlying terminal illness, and In light of this very specific provision, it is difficult to see should be recorded as such, although the suggestion how the common law doctrine of double effect can apply. has been made (via submissions to the Review) that Because of this legal uncertainty, the 2017 Palliative Care it is important to note that VAD has occurred for the Inquiry undertaken by the House of Assembly Standing purposes of collecting statistical data on cause of death Committee on Community Development recommended (the concern being that not recording this information that the Tasmanian Government enact in legislation the could skew data that is used by clinicians when making common law doctrine of double effect to strengthen decisions about prognosis and outcomes). legal protection for those who provide end-of-life care (Recommendation 17), but this has not yet been The experience from Canada, where medical assistance implemented.124 in dying (MAiD) has been available now for a number of years, is instructive in providing an indication of how life In conclusion, even though practices that constitute this insurers in Australia are likely to deal with VAD. In Canada double effect and VAD are distinctly different, perhaps there is generally an exclusion of life insurance payouts because of this very difference, legislation could be in respect of a suicide applying to policies in place for considered to clarify the double effect issue. less than two years. Since the introduction of MAiD, provided that both the health preconditions (terminal 6.7.4 Influence of voluntary assisted dying illness/palliative condition) and legal requirements of the for individuals in relation to life insurance legislation are met, Canadian life insurance companies have paid claims in full and the case is treated as a usual Another legal issue that has raised concern since the death. This approach has been formalised through the introduction of VAD legislation in Australia is the impact issuing of Guidelines on Medical Assistance in Dying by of VAD for individuals’ life insurance. A quite common the Canadian Life and Health Insurance Association.125 provision in life insurance policies is an exclusion for death Further to those guidelines, member companies would by suicide, usually specified to apply if it occurs within not treat deaths resulting from MAiD as a ‘suicide’ for the first 13 months of taking out the policy. This is allowed policy purposes provided the legislated process has been under the Life Insurance Act 1995 (Cth) provided that the followed. Other defences available to insurers (such as exclusion in respect of suicide is expressly included in the misrepresentation or other exclusions) would remain policy (s228.). open. The Guidelines also state that it will be important Although there are a number of practical reasons which for life insurers to be aware of the underlying cause make it unlikely that this would be an issue. For example, of death in the circumstances, and accordingly have it would be rare for someone to be healthy enough to recommended to provincial governments in Canada pass the initial underwriting health assessment required (which have responsibility for regulating the detail of for life insurance and then to qualify for VAD within the MAiD), that the underlying cause of death be recorded on next 13 months. Furthermore, life cover also pays out death certificates issued in the circumstances of a MAID on terminal illness where the person’s life expectancy death. is expected to be less than a year (sometimes two). This To date, the Australian life insurance peak body, Financial means the person would almost certainly be eligible to Services Council, has not issued any guidelines in relation claim before VAD comes into consideration, it does give to VAD. A plain reading of the Tasmanian VAD legislation rise to the question of whether death by VAD amounts to is that VAD is differentiated from suicide and that persons suicide, such that it may preclude life insurance coverage would not be eligible for VAD unless their condition was on death that the person had organised for their family terminal and they are expected to die within a period of (assuming that the policy has an exclusion for suicide.) months. Read together with the specific provision stating The Victorian VAD legislation has been in force since that death by VAD is not suicide, there should be no 19 June 2019 (The Western Australia VAD legislation is life insurance access issues for persons seeking to avail expected to come into force on 1 July 2021) but to date, themselves of VAD. there have been no reported cases examining this issue in Australia.

86 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Dying Research, accessed 12 February 2021, https:// Endnotes www.ipsos.com/sites/default/files/migrations/en-uk/ 1. As cited in Royal Commission into Aged Care files/Assets/Docs/Polls/economist-assisted-dying- Quality and Safety Background Paper 2, pp. topline-jun-2015.pdf; Newspoll (2012). Australian 2-3. Commonwealth of Australia (2019). Royal Public Desire for Legalisation of Assisted Dying in Commission into Aged Care Quality and Safety: Restricted Circumstances: Whitepaper, accessed 12 Medium- and long-term pressures on the system: February 2021, https://dwdnsw.org.au/wp-content/ The changing demographics and dynamics of aged uploads/2017/03/YLR-NEWSPOLL-WHITE-PAPER- care, Background Paper 2, May 2019, accessed 12 AUSTRALIA-2012.pdf; Roy Morgan Research February 2021, https://agedcare.royalcommission. (2017). It’s Official: Australians support assisted gov.au/publications/background-paper-2-medium- dying or euthanasia, Article no. 7373, accessed and-long-term-pressures-system-changing- 12 February 2021, http://www.roymorgan.com/ demographics-and-dynamics-aged-care findings/7373-large-majority-of-australians-in- favour-of-euthanasia-201711100349; The Australia 2. The period 1976-2016 is based on census data, Institute (2012). New Survey Shows Majority Support while 2016-2019 are population projections. for Euthanasia, accessed 12 February 2021, https:// Australian Bureau of Statistics (2016). 2016 australiainstitute.org.au/post/new-survey-shows- Census QuickStats: Tasmania. Accessed 11 majority-support-for-euthanasia/; The Economist December 2020, https://quickstats.censusdata.abs. (2015), The Economist’s poll results – Attitudes gov.au/census_services/getproduct/census/2016/ towards assisted dying: Briefing, The Economist, 27 quickstat/6?opendocument#:~:text=In%20the%20 June 2015, accessed 12 February, https://www. 2016%20Census%2C%20there,up%204.6%25%20 economist.com/briefing/2015/06/27/attitudes- of%20the%20population.&text=The%20median%20 towards-assisted-dying age%20of%20people%20in%20Tasmania%20 was%2042%20years; Australian Bureau of Statistics 6. Blouin, S (2018). ‘“Suicide tourism” and understanding (2020a). Population Clock. Accessed 12 February 2021, the Swiss model of the right to die’, The Conversation, https://www.abs.gov.au/ausstats/ 24 June 2018, accessed 8 January 2021, https:// theconversation.com/suicide-tourism-and- 3. Victorian Agency for Health Information, Safer Care understanding-the-swiss-model-of-the-right-to- Victoria (2020). Voluntary Assisted Dying Report die-96698 of Operations (January to June 2020), accessed 18 February 2021, https://www.bettersafercare.vic.gov. 7. Ibid. au/publications/VADRB-january-to-june-2020 8. Hamlyn, C and Shepherd, B (2018). ‘David Goodall 4. Gastrointestinal cancers are recorded in the ends his life at 104 with a final powerful statement Australian Cancer Database under a subset of more on euthanasia’, ABC News, 10 May 2018, accessed 8 specific diagnoses. These are: oesophageal, stomach, January 2021, https://www.abc.net.au/news/2018-05- colorectal, colon, and liver cancer. Australian Institute 10/david-goodall-ends-life-in-a-powerful-statement- of Health and Welfare (2020a). Australian Cancer on-euthanasia/9742528 Database: Cancer Data in Australia. Accessed 12 February 2021, https://www.aihw.gov.au/reports/ 9. White, B.P, Willmott, L. (2012). How should Australia cancer/cancer-data-in-australia/contents/cancer-by- regulate voluntary euthanasia and assisted suicide? state-and-territory-data-visualisation A background paper, Australia 21 and QUT health Law Research Centre, November 2012 5. While broadly similar, the wording of questions asked in these surveys has varied over time and by 10. Termination of Life on Request and Assisted Suicide pollster. Australian Broadcasting Corporation (2019) (Review Procedures) Act 2002, Chapter 2, Section 2. ‘Vote Compass: Euthanasia Support Strengthens to Nearly 90%, Vote Compass Data Show’, Australian 11. Parliament of Western Australia (2018). My Life, My Broadcasting Corporation, accessed 12 February Choice: The Report of the Joint Select Committee 2021, https://www.abc.net.au/news/2019-05-08/vote- on End-of-Life Choices, August compass-social-issues-euthanasia-transgender- 12. Ibid. Chapter 2, Section 2.1.3 republic-drugs/11087008; Essential Media Communications (2016). The Essential Report: 27 13. Ibid. Chapter 2, Section 2 September 2016, accessed 12 February 2021, https:// www.essentialvision.com.au/wp-content/ 14. White, B.P, Willmott, L. (2012). How should Australia regulate voluntary euthanasia and assisted suicide? uploads/2016/09/Essential-Report_160927.pdf; Ipsos A background paper, Australia 21 and QUT health (2015). Poll Conducted for the Economist: Assisted Law Research Centre, November 2012

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 87 15. Parliament of Western Australia (2018). My Life, My assistance-dying.html Choice: The Report of the Joint Select Committee on End-of-Life Choices, August 28. Ibid.

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END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 99 Appendix 1: Submissions to the Review

1. End-of-Life Choice Society New Zealand 29. Helen Lord

2. Professor John Burgess 30. Louise Spaulding

3. Christians Supporting Choice for Voluntary Assisted 31. Calvary Healthcare Dying 32. Live and Die Well 4. Australian Christian Lobby 33. ANZ Society of Palliative Medicine 5. Doctors for Assisted Dying Choice (Tas) 34. Frank Brennan 6. Dr George Merridew 35. Odette Spruijt 7. Australian Care Alliance 36. Anthea Patterson 8. Palliative Care Tasmania 37. Christopher Middleton 9. Robyn Maggs 38. Jeff Malpas 10. Australian Catholic Bishops Conference 39. Joe Tempone 11. AMA Tas 40. Mike Sladden 12. William Cox 41. 13. Annie Fagan

14. Life Choices Tasmania

15. Mary Larnach-Jones

16. Sarah Loft

17. VALE Group

18. Marion Harris

19. Norelle Lickiss

20. Tamara Corbett

21. Dying with Dignity (Tas)

22. Catholic Health

23. MIGA (Medical Insurance Group Australia)

24. Go Gentle Australia

25. Karen Dixon

26. Legana Christian Church

27. Ben White and Lindy Willmott

28. Anglican Church Tasmania

Submissions will be published on the Review Panel website - www.utas.edu.au/vad-review

100 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Appendix 2: Complete tables 2.2 and 2.3 VAD bills in Australian jurisdictions

Who Jurisdiction Bill Date introduced Notes introduced?

Voluntary and Between 1993 and 1997 there were 5 Australian Capital Michael Moore Natural Death Bill 18 June 1993 unsuccessful attempts to introduce Territory (Independent) 1993 (plus 4 more) VAD legislation

Voluntary John Quirke Between 1995 and 2016 there South Australia Euthanasia Bill 1995 9 March 1995 (Australian Labor were 20 unsuccessful attempts to (plus 19 more) Party introduce VAD legislation

Rights of the Marshall Perron Northern Repealed by the Commonwealth Terminally Ill Act 22 February 1995 (Country Liberal Territory 1995 Party) Euthanasia Laws Act 1997

Criminal Code John Bailey Attempt to amend the Northern (Euthanasia) 18 February 1998 (Australian Labor NT legislation to prevent Amendment Bill Territory Party) 1997 Commonwealth disallowance

This legislation disallows the above Euthanasia Laws 9 September Kevin Andrews Commonwealth NT Law and subsequent laws in NT Act 1996 1996 (Liberal) and ACT

Unsuccessful attempt to repeal above Euthanasia Laws Bill 1996 Euthanasia Laws Lyn Allison There have been 6 subsequent and Commonwealth (Repeal) Bill 2004 3 March 2004 (Australian (plus 6 more) Democrats) unsuccessful attempts to repeal the Commonwealth veto between February 2007 and December 2015

Voluntary Elisabeth Kirkby Between 1997 and 2017 there were 9 Euthanasia New South Wales 15 May 1997 (Australian unsuccessful attempts to pass VAD Referendum Bill Democrats) legislation in the NSW parliament 1997 (plus 8 more)

Nick McKim Dying with Dignity Bill defeated in the House of Tasmania 26 May 2009 (Australian Bill 2009 Assembly 15 votes to 7 Greens)

Lara Giddings (Australian Labor Party) Voluntary Assisted 26 September Bill defeated in the House of Tasmania Dying Bill 2013 2013 Nick McKim Assembly 13 votes to 11 (Australian Greens) Passed by Legislative Council 10 End of Life Choices Mike Gaffney November 2020, currently being Tasmania (Voluntary Assisted 27 August 2020 (Independent) considered by the House of Dying) Bill 2020 Assembly

Medical Treatment Colleen Hartland Bill defeated in its Legislative Victoria (Physician Assisted 28 May 2008 (Australian Council second reading 25 votes Dying) Bill 2008 Greens) to 13

Jill Hennessy Parliament passed the Bill on 29 Voluntary Assisted 20 September Victoria (Australian Labor November 2017 and it came into Dying Act 2017 2017 Party) effect on 19 June 2019

Norm Kelly Between 1997 and 2010 there were Voluntary Western Australia 16 October 1997 (Australian 6 unsuccessful attempts to pass Euthanasia Bill 1997 Democrats) VAD legislation in WA

Roger Cook Voluntary Assisted Parliament passed the Bill on 10 Western Australia 7 August 2019 (Australian Labor Dying Act 2019 Party) December 2019.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 101 Appendix 2: Complete tables 2.2 and 2.3 Key Australian and New Zealand reports on VAD

Jurisdiction Body/Author Date Report The Senate referred the Medical Services (Dying with Dignity) Exposure Draft Bill 2014 to the Committee for inquiry and report, tasking it with considering the rights Parliament of Medical Services (Dying of terminally ill people to seek assistance in ending Australia, Senate, November with Dignity) Exposure their lives, and considering an appropriate framework Australia Legal and 2014 Draft and safeguards with which to do so. The Committee Constitutional Affairs Bill 2014 found some technical issues with the Bill, which it Legislation Committee recommended be addressed. It also recommended that if the Senate were to deal with this broad policy issue, Party Leaders should allow a conscience vote.

The Committee examined and reported back on New Zealand End of Life Choice Bill: As the End of Life Choice Bill, recommending minor, New April Parliament, Justice reported from the Justice technical and consequential amendments only leaving Zealand 2019 Committee Committee the issue of whether or not to legalise VAD to what it expected would be a conscience vote.

The Right of the Individual Committee’s role was to gather, analyse and summarise Parliament of the or the Common Good? the community’s views on euthanasia to inform the Northern Northern Territory, May Report of the Legislative Assembly debate on the Rights of the Territory Select Committee on 1995 Inquiry by the Terminally Ill Bill 1995, rather than to recommend or not Euthanasia Select Committee recommend VAD on Euthanasia

Parliament of The Committee produced three reports from its Queensland, Health, Inquiry into Aged Care, End-of-Life and Palliative Care Communities, Voluntary and Voluntary Assisted Dying – this report being one March Queensland Disability Services and Assisted of those three. The Committee recommended that 2020 Domestic and Family Dying Queensland use the draft legislation designed by Ben Violence Prevention White and Lindy Wilmott as the basis for a legislative Committee scheme, and also set out its preferred framework

The Committee Members held divergent views on VAD but stated that if South Australia were to legalise VAD then Victoria’s system would be the preferred on. The Parliament of South Report of the Committee recommended that SA monitor and review South Australia, Joint October Joint Committee on the outcomes of the systems in Victoria and WA in Australia Committee on End of 2020 End of Life Choices order to design a system in that state. The Committee Life Choices also recommended improvements to palliative care and the processes around advance care directives in South Australia.

Voluntary Assisted Dying: Giddings and McKim provided this paper to inform Larissa Giddings and February Tasmania A Proposal for Tasmania debate vis-a-vis their co-sponsored Bill, the Voluntary Nicholas McKim 2013 (Consultation Paper) Assisted Dying Bill 2013

The Committee recommended that a VAD system be Parliament of Victoria, Inquiry into end put in place to cater for the needs of individuals, while Legislative Council, June Victoria of life choices: ensuring that there are safeguards in place to protect Legal and Social 2016 Final report vulnerable people. It also made recommendations for Issues Committee improving palliative care and advance care directives

Ministerial Advisory Panel The Panel’s role here was to consider how to put the Victorian July on Voluntary Assisted broad policy direction as recommended the previous Victoria Government 2017 Dying: year by the Legal and Social Issues Committee into Final Report practice

The Committee recommended that the Government My Life, My Choice: The Parliament of Western introduce VAD legislation, and emphasised the Report of the Western Australia, Joint Select August importance of individual autonomy and choices at end- Joint Select Committee Australia Committee on End of 2018 of-life. The Committee also recommended that a Panel on End Life Choices be appointed to undertake consultation and to develop of Life Choices the WA VAD legislation

The Panel provided a legislative framework including Ministerial Expert Panel on Western Government of June guiding principles and including points of agreement Voluntary Assisted Dying: Australia Western Australia 2019 with the recommendations of the Joint Select Final Report Committee report.

102 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Appendix 3: Summaries of voluntary assisted dying legislation in comparative jurisdictions

Australian VAD legislation and bills are largely based on the Victorian Voluntary Assisted Dying Act (2017) which is summarized in Section 4.1 This appendix provides a similar analysis of the subsequent Western Australian Act, the VAD Bill currently before the South Australian Parliament and the key elements of the Canadian and New Zealand legislation.

WESTERN AUSTRALIA: THE Eligibility VOLUNTARY ASSISTED DYING ACT 2019 The eligibility criteria for VAD under the Act are contained in s 16. The person must: Objectives and Principles • be 18 years or older The Act contains 11 principles which must be considered when a person exercises a power or performs a • be either an Australian resident or a permanent function under the Act (s. 5). These principles are similar resident who has been ordinarily resident in to those contained in the Victorian Act (4.1.1(I)): Western Australia for at least one year at the time of making their first request • the equal value of every life • have decision-making capacity in relation to • respect for persons’ autonomy VAD. This means they must have the capacity to understand, consider, and communicate a • the right of persons to be supported in making decision about VAD. Persons are presumed to have decisions about their treatment and palliative care such capacity (s. 6) options • be acting voluntarily and without coercion, and • the right of persons approaching the end-of-life to their request for access to VAD must be enduring high quality care • be diagnosed with an advanced and • the need to support therapeutic progressive illness that will cause relationships between persons and their health death within six months, or 12 months in the case practitioners of a neurodegenerative condition. The illness must not be able to be tolerably relieved. Having • the need to encourage open discussions a disability or a mental illness alone will not satisfy around death and dying and end-of- this requirement. life preferences Consultation and referral process • the need to support persons in conversations with others about their treatment and care preferences The Act makes provision for a minimum of two medical practitioners who participate in the VAD process. A • the entitlement of persons to genuine choices person’s Coordinating Practitioner accepts their first about their care, treatment, and end-of-life request for VAD and conducts the first eligibility regardless of where in Western Australia the assessment. Provided that the person meets the eligibility person lives, having regard to their culture and criteria, and understands the information about their language prognosis, palliative and non-palliative treatment • the entitlement of all residents to equal access to options and likely outcomes contained in s 27(1), the VAD Coordinating Practitioner must then find the patient eligible for access to VAD, and refer the person to another • the need to protect persons from abuse and medical practitioner for a consulting assessment (pt. 3, coercion div. 3). The Consulting Practitioner accepts the referral, and conducts the second assessment of the person’s • the right of all persons to be shown respect for eligibility, termed the consulting assessment. If either their culture, religion, beliefs and values. the Coordinating or Consulting Practitioners are unable to determine whether the person is eligible to access VAD, they must refer the person to a registered health practitioner with the appropriate skill and training to make the determination (ss. 26, 37).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 103 If the Consulting Practitioner finds the person ineligible administering the substance suitable for the patient. A for VAD, the Coordinating Practitioner may refer the practitioner administration decision authorises the person to another registered medical practitioner Coordinating Practitioner to prescribe the VAD substance, for a further consulting assessment (s. 41). If the the authorised supplier to possess, prepare and supply Consulting Practitioner finds the person eligible, and the VAD substance, and the Administering Practitioner to understands the information explained to them about administer the substance to the person in the presence their prognosis and treatment options contained of an eligible witness, provided their request for VAD is in s. 27(1), the Consulting Practitioner must find the enduring, they are acting voluntarily and have decision- person eligible to access VAD (pt. 3, div. 4), following making capacity (s. 59). A self-administration decision which the person may make a written declaration to authorises the Coordinating Practitioner to prescribe the Coordinating Practitioner in the approved form, a VAD substance, the authorised supplier to supply appropriately signed and witnessed, declaring their the substance to the patient, and the person to self- voluntariness and understanding of the nature of administer (pt. 4, div. 2). As is the case under the Victorian their declaration (pt. 3, div. 5). The person may then Act, the Western Australian Act does not require medical make a final request to the Coordinating Practitioner supervision during self-administration. for access to VAD at least nine days after the day on which they made their first request. This prompts the Legal and other protections Coordinating Practitioner to conduct a final review, Healthcare workers must not initiate a discussion about whereby they review the first assessment report VAD nor suggest VAD to a person, unless the person form, all consulting assessment report forms, the requests this information, or the healthcare worker written declaration and to complete the final review provides this information in concert with the person’s form (pt. 3, div. 6). treatment and palliative care options and likely Practitioner qualifications outcomes (s. 10). Persons are free to withdraw from the VAD process at any time. The Act is prescriptive with A medical practitioner is able to act as a Coordinating respect to the information that must be conveyed to or Consulting Practitioner if they hold specialist the person at various stages, and requires that the VAD registration and have practised the medical profession process be heavily documented, official documents be for at least one year; or they hold general registration signed and witnessed, and the VAD Board informed and have practised the medical profession for at least of the progression of each request. Importantly, where 10 years; or they are an overseas-trained specialist who an authorised supplier receives a prescription for a holds limited or provisional registration. Coordinating VAD substance, they must verify the authenticity and Consulting Practitioners cannot be family members of the prescription and fill out the appropriate of the person, nor stand to financially benefit from documentation (pt. 4, div. 4). Further, the Act the person’s death (s. 17). Practitioners able to act as criminalises certain instances of non-compliance with Administering Practitioners are medical practitioners the Act, including inducing a person to request VAD, by eligible to act as Coordinating Practitioners, and nurse advertising certain poisons as VAD substances, and failure practitioners who have practised the nursing profession to give the VAD Board relevant documentation (pt. 6). for a minimum of two years. Administering practitioners must have completed the approved training, and be Registered health practitioners’ participation in the independent of the person (pt. 4, div. 1). VAD process is entirely voluntary, and they may refuse to participate where they have a conscientious objection Administration of voluntary assisted to VAD or for any other reason (s. 9). In Part 8, the Act dying substance gives legal protection to practitioners who, in good faith and without negligence, assist a person in the Once the final review has been certified by the VAD process or who are present during administration. Coordinating Practitioner, the person, in consultation with Protection is also given to ambulance officers who do the Coordinating Practitioner, makes a decision about the not administer lifesaving treatment to persons where form of VAD they are seeking; either a self-administration they believe on reasonable grounds that the person decision or a practitioner administration decision (pt. 4, has ingested a VAD substance in accordance with the div. 2). Act, and where the person has not requested lifesaving treatment. A practitioner administration decision can only be made if self-administration is inappropriate having regard to Further, the Act is prescriptive with respect to the the ability of the patient to self-administer, the patient’s handling, storage, labelling and disposal of the concerns about self-administering or the method for VAD substance. Persons intending to self-administer

104 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 must appoint a contact person who must return unused • be an Australian citizen or permanent or remaining VAD substance to an authorised supplier, resident who has been ordinarily resident in and failure to do so is a criminal offence (s. 105). South Australia for one year prior to making the first request Monitoring and oversight • have decision-making capacity in relation to VAD, The Act establishes the VAD Board in Part 9 whose which is the ability to understand, retain, weigh, functions include monitoring and reporting on the and communicate relevant information. Persons operation of the Act, and referring matters to persons are presumed to have such capacity (s. 4) or bodies including the Police, the Coroner, and the AHPRA. Medical practitioners and authorised • have an incurable, advanced and progressive suppliers are required to complete and send copies of illness that is expected to cause death within relevant documentation to the VAD Board, including the six months or 12 months in the case of a final review form completed pursuant to s. 51. neurodegenerative illness. This illness must be causing suffering to the person which cannot SOUTH AUSTRALIA: THE VOLUNTARY be tolerably relieved. Persons are not eligible only ASSISTED DYING BILL 2020 because they are diagnosed with a mental illness or disability. Objectives and principles Consultation and referral process The Bill (tabled in the SA Parliament on 2 December 2020) contains a list of 10 principles which must be The Bill makes provision for a minimum of two medical considered by a person exercising a power or performing practitioners who participate in the VAD process. A a function under the Act (s. 7). These are: person’s Coordinating Medical Practitioner accepts their first request for VAD, and conducts the first assessment • every life has equal value of the person’s eligibility for VAD (pt. 3, div. 3). If the • respect for persons’ autonomy Coordinating Medical Practitioner finds that the person is eligible to access VAD, they must refer the person to • the right of persons to information about medical another registered medical practitioner for a consulting treatment options and to be supported in making assessment (pt. 3, div. 4). informed decisions about their medical treatment A person’s Consulting Medical Practitioner is • the need to provide every person approaching the the registered medical practitioner who accepts end-of-life with quality care the Coordinating Medical Practitioner’s referral for a consulting assessment, and conducts the consulting • the importance of maintaining therapeutic assessment. Both the Coordinating and Consulting relationships between persons and their health Medical Practitioners must find that the person is eligible practitioners to access VAD if the person satisfies the eligibility criteria, if they understand the information provided to • the need to encourage persons to openly discuss them under s 23 of the Bill, if they are acting voluntarily death and dying and their treatment and care and without coercion, and if their request for VAD is preferences with others; the entitlement of all enduring. Both practitioners must refer the person for a persons to genuine choices regarding their specialist opinion if they are unable to make the requisite treatment and care determination (ss. 22, 31). If the Consulting Medical • the need to protect persons from abuse; Practitioner finds the person ineligible for VAD, the and the right of all persons, including health Coordinating Medical Practitioner may refer the person practitioners, to be shown respect for their culture, to another registered medical practitioner for a further beliefs, values and personal characteristics consulting assessment (s. 35). If the person is determined to be eligible to access VAD, the person may then make a Eligibility written declaration, appropriately signed and witnessed (pt. 3, div. 5), followed by a final request, whereupon the The eligibility criteria for access to voluntary assisted Coordinating Medical Practitioner undertakes a final dying (‘VAD’) are contained in s 13 of the Bill. To be eligible, review of all of the documentation completed thus far (pt. persons must: 3, div. 6).

• be aged 18 years or older

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 105 Practitioner Qualifications VAD process is required to be heavily documented, with copies of official documents all sent to the VAD Each Coordinating and Consulting Medical Practitioner Board, and provision made for the eligibility of persons must either hold a fellowship with a specialist medical to act as witnesses to a person’s signature on written college or be a vocationally registered general instruments (e.g. ss 30-40). The Bill criminalises certain practitioner. One of them must have practiced as a instances of non-compliance with the Bill (pt. 8), registered medical practitioner for at least five years post- including falsifying forms and failing to give copies of fellowship or vocational registration, and either one of documents to the VAD Board, and the failure of a contact them must also have relevant expertise and experience person to return any remaining VAD substance once the in the illness expected to cause the death of the person person has died. being assessed (s. 14). Both practitioners must also have completed the approved assessment training (ss. 21, 30). The participation of registered health practitioners in the VAD process is entirely voluntary, and those Administration of voluntary assisted with a conscientious objection to VAD may refuse to dying substance participate or be present during administration (s. 9). Broad protection is given under the Bill to registered Under the Bill, the Coordinating Medical Practitioner may health practitioners who, in good faith and without apply to the Chief Executive of the administrative unit negligence, act pursuant to the Bill, which is extended to of the Public Service for either a self-administration or ambulance officers present after the administration of a practitioner administration permit for the person. The VAD substance (pt. 7, div. 2). The Bill also makes provision Chief Executive may issue or refuse to issue a VAD permit, for legally pursuing persons who harass or discriminate and refusal may be on the basis that the request and against a person who provides, or who will provide, assessment process has not been completed as required information pursuant to the Bill (s. 112). by the Bill (s. 53). Finally, the Bill makes provision for the secure Self-administration is the default procedure under the handling, storage, labelling and disposal of prescribed Bill, and the Coordinating Medical Practitioner may apply VAD substances (pts. 4-5), including the need for for a practitioner administration permit only if satisfied persons to appoint a contact person with obligations that the person is physically incapable of the self- in respect of the return of unused or remaining VAD administration or digestion of the VAD substance. If the substance (ss. 43-44). Chief Executive approves the practitioner administration permit, a person may make an administration request Monitoring and oversight in person to the Coordinating Medical Practitioner, who may later administer the VAD substance to the The Bill establishes the VAD Board (pt. 9), whose person, if satisfied that the person has decision-making functions include collecting and disclosing forms capacity in relation to VAD and if their request for VAD and information provided in accordance with the Bill is enduring. The Coordinating Medical Practitioner may and referring any issues to the relevant body including only administer the VAD substance to the person under the police, the State Coroner, and AHPRA. these circumstances in the presence of a witness. If the The Bill requires that the Coordinating Medical Chief Executive issues a self-administration permit, the Practitioner conducts a final review of the forms Coordinating Medical Practitioner may prescribe a VAD that have been completed in the request and substance for the person to self-administer (pt. 4, divs. assessment process, and sends copies of all the 1-2). This Bill, similar to the Acts in Victoria and Western completed documents to the VAD Board (s. 45). Further, Australia, does not require medical supervision of the self- the Chief Executive determines applications by administration of the VAD substance. Coordinating Medical Practitioners for VAD permits. The Legal and other protections Chief Executive may refuse to issue a VAD permit if they are not satisfied that the request and assessment process Registered health practitioners are was completed in accordance with the Bill (s. 53). prohibited from suggesting VAD to a person, and from initiating a discussion about VAD with a person, CANADA: THE MEDICAL ASSISTANCE except in response to a person’s direct request (s. 10). The IN DYING ACT (2016) Bill gives legal protection to persons who disclose The Canadian VAD regime pre-dates the Australian to AHPRA instances of non-compliance with this legislation and is primarily concerned with prohibition (pt. 7, div. 1). Persons are free to withdraw decriminalising assisted dying and providing a framework from the VAD process at any time (ss. 16, 48), and the

106 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 for provincial legislation. See Section 2.X for further • Introduce additional safeguards to protect those information on the history of Canada’s VAD legislation. who wish to access VAD despite their death not being reasonably foreseeable Objectives and principles • Permit VAD to be provided to a person who has The Canadian Medical Assistance in Dying Act (2016) lost the capacity to consent due to unsuccessful commits to recognising the autonomy of those who self-administration of the lethal medication; and suffer from grievous and irremediable medical conditions, by allowing those suffering to seek assistance in dying. • Permit VAD to be provided to a person who has The Act amends the Canadian Criminal Code to create lost the capacity to consent, provided that the exemptions from the offences of culpable homicide, of death is reasonably foreseeable, the person has aiding suicide and of administering a noxious thing. A made an application to be exempt from the ‘final significant part of the Act is dedicated to determining the consent’ requirement, and two assessing medical criteria of eligibility and creating new offences for failing practitioners have determined that the person is to adhere to the safeguards within the Act. otherwise eligible to access VAD

Eligibility Consultation and referral process

• A person may only be medically assisted in dying A person wishing to access VAD is required to make if they meet all criteria set out in section 241.2(1) of one request to a medical practitioner, but it is the the Act. A person must: responsibility of the medical practitioner to seek a second opinion to ensure that the person fulfils all eligibility • Be eligible for government-funded health services criteria (s 241.2(3)(e)). The medical practitioner who receives the initial request is also responsible for ensuring • Be a minimum of 18 years old and be able to make that the request was signed and dated in the presence decisions about their health. of two independent witnesses who also signed and • Have a grievous and irremediable medical dated the request (s 241.2(3)). Where a person is unable condition to sign and date their request for medically assisted dying, as required by the procedural safeguards, then • Have made a voluntary request for medical another person may do it for them, in accordance with assistance in dying that was not made as a result the safeguards in section 241.1(3). Finally, the medical of external pressure practitioner must allow 10 clear days between the day the request was signed by the person and the day that • Provide informed consent to receive medical medical assistance in dying is provided, or the substance assistance in dying after being informed of the is given for self-administration (s 241.2(3)). different means that are available to them to relieve their suffering, including palliative care It is important to note that the national legislation is heavily supplemented by additional regulations that Section 241.2(2) details the criteria that must be met are made by the provinces and territories of Canada. for a person to be considered as having a grievous and Canadian provinces and territories have the jurisdiction irremediable medical condition. These criteria include to decide the processes around administering VAD, the that the person’s natural death must have become requirements for accessing VAD and how data should reasonably foreseeable (ss d). However, at the time of be collected, providing that the regional regulations writing, a Bill before the Canadian Parliament (C-7, 2020) are consistent with the requirements in the national seeks to implement the 2019 ruling of the Supreme legislation. This arrangement accounts for the brevity of Court of Québec in Truchon v Canada (AG) (2019, QCCS the national legislation. 3792). This case established that the requirement death be ‘reasonably foreseeable’ was unconstitutional and Administration of voluntary assisted must be repealed. A Third Reading of the Bill in the dying substance Senate, and the giving of Royal Assent, is expected within the first quarter of 2021. The Bill (C-7, 2020) seeks to: In the national legislation, the term ‘medical assistance in dying’ is defined to mean ‘...the administering by a • Clarify that those suffering solely from mental medical practitioner or nurse practitioner of a substance illness are ineligible to access VAD to a person, at their request, which causes their death; or the prescribing or providing by a medical practitioner • Allow access to VAD even where death is not or nurse practitioner of a substance to a person, at their reasonably foreseeable.

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 107 request, so that they may self-administer the substance • In situations where the person has difficulty and in doing so cause their own death’ (s 241.1(a) and communicating, take all necessary measures to (b)). It is therefore clear that a medical practitioner or provide a reliable means by which the person may nurse practitioner may administer medication inducing understand the information that is provided to death or prescribe the medication for self-administration. them and communicate their decision. However, it ought to be noted that in some provinces of Canada, such as Québec, self-administration is not There are no specific provisions in the Act which provide permitted. protections to the medical practitioners involved in the process. However, the primary aim of the Act is to The involved medical professionals also have an adjust sections of the Canadian Criminal Code so that important administrative role to play. Before a person medical professionals, aides and witnesses to requests accesses the Canadian VAD program, the administering are not criminally liable for medically assisting someone medical professional must ensure that the relevant in dying when they act in accordance with the eligibility safeguards are adhered to (s 241.1(3)), and afterwards, criteria and safeguards in the Act. Moreover, many of the must ensure that the relevant authorities have all safeguards to protect the person accessing VAD double the required information that is necessary to keep as a safeguard for involved medical practitioners. comprehensive records (s 241.31(1)). Monitoring and oversight Legal and other protections Subsections 241.31(1) and (2) require involved medical The key safeguards for the person wishing to access practitioners and pharmacists to disclose certain medically assisted dying are set out in s 241.2(3). Before information, to allow accurate and comprehensive data a medical professional provides a person with medical collection to occur under the regulations, which later assistance in dying, the medical practitioner or nurse operates to inform a number of reviews. Under s 9(1), an practitioner must: independent review commenced 180 days after Royal Assent of the Act, to investigate issues arising from • Hold the opinion that the person meets the mature minors requesting medical assistance in dying, criteria for eligibility advance requests and instances where mental illness was the sole underlying medical condition. The findings • Ensure that the person’s request for VAD was of the independent review, completed by the Council of made in writing, is signed and dated by the Canadian Academies in December 2018, are reflected person, after the person was informed that in the proposed amending Bill (Bill C-7), particularly they have a grievous and irremediable medical in relation to the decision to expressly prohibit those condition suffering solely from mental illness to be eligible for VAD. • Be satisfied that the request was signed and dated Moreover, total review of the Act must occur during the in the presence of two independent witnesses fifth year after the Act received royal assent, which is 2021 who also signed and dated the request (s 10(1)).

• Ensure that the person requesting assistance in NEW ZEALAND: THE END OF dying has been informed they can at any time and LIFE CHOICE ACT 2019 in any matter, withdraw their request The End of Life Choice Act (2019) will come into force in • Ensure that a second independent medical November 2021 following a binding referendum in which professional has provided a written opinion the majority of New Zealanders voted in support of the confirming that the person meets all the criteria Act. for eligibility Objectives and principles • Ensure that there are at least 10 days between The purpose of the Act is to give persons who have a the day on which the request was signed by terminal illness and who meet certain criteria the option the person and the day upon which medical of lawfully requesting medical assistance to end their assistance in dying is provided, unless both lives, and to establish a lawful process for assisting eligible consulting practitioners believe that the person’s persons who exercise that option (s. 3). death or the loss of their capacity to consent is imminent

• Immediately before providing assistance in dying, give the person an opportunity to withdraw their request

108 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 Eligibility Practitioner qualifications

The eligibility criteria are contained in s 5 of the Act. To A medical practitioner is a health practitioner who is, be eligible for voluntary assisted dying (‘assisted dying’ or or deemed to be, registered with the Medical Council ‘AD’) under the Act, the person must: of New Zealand as a practitioner of the profession of medicine and who holds a current practising certificate. • be 18 years or older An independent medical practitioner is a medical practitioner who in relation to the person who has • be either a New Zealand citizen or a requested AD is independent of the person and of the permanent resident person’s attending medical practitioner, and who has • be competent to make an informed decision held, for at least the previous five years, a practising about AD, which means being able to understand, certificate, or the equivalent certification from an retain, use and communicate information about overseas authority responsible for the registration or AD decisions (s. 6) licensing of medical practitioners. A psychiatrist under the Act is a medical practitioner whose scope of practice • be suffering from a terminal illness that is likely includes psychiatry. A nurse practitioner is a health to end the person’s life within six months, which practitioner who is or is deemed to be registered with is causing unbearable suffering that cannot be the Nursing Council of New Zealand as a practitioner for tolerably relieved. The person must further be the profession of nursing and whose scope of practice in an advanced state of irreversible decline in permits the performance of nurse practitioner functions physical capability and who holds a current practicing certificate. Nurse practitioners are able to act as an attending nurse Persons are not eligible for AD by reason only that they practitioner where they act under the instruction of an are suffering from a mental disorder or illness, or have a attending medical practitioner (s. 4). disability or are of advanced age (s. 5(2)). Administration of voluntary assisted Consultation and referral process dying substance

The Act makes provision for a minimum of two medical If the person is found to be eligible for AD, they must practitioners to participate in the VAD process. complete the approved form choosing the date and time for the administration of the medication (ss. A person’s Attending Medical Practitioner receives the 17-18). Next, the person must elect one of the four person’s initial request to exercise the option of receiving administration methods available under the Act, AD, confirms this request in the requisite form, and gives which are: ingestion triggered by the person, ingestion the first opinion on the person’s eligibility to access AD triggered by the attending medical practitioner or (ss. 11-13). If the Attending Medical Practitioner finds nurse practitioner, intravenous delivery triggered by that the person is eligible for AD, or that the person the person, or injection administered by the relevant would be eligible if it could be established that they are practitioner (s. 19). This allows the Attending Medical competent to make an informed decision about AD, Practitioner or Attending Nurse Practitioner to write the the Attending Medical Practitioner may then ask the appropriate prescription. The Registrar must check that Support and Consultation for End of Life in New Zealand the requisite processes have been complied with and (‘SCENZ’) Group for the name and contact details notify the Attending Medical Practitioner accordingly of an Independent Medical Practitioner and ask the before administration can occur (s. 19(4)-(5)). At the time Independent Medical Practitioner for a second opinion of administration, the Attending Medical Practitioner in relation to whether the person is eligible for AD (s. or Attending Nurse Practitioner must check that 14). If either or both of the Attending and Independent the person still wishes to receive the medication at Medical Practitioners have found that the person would that time, and enacts the person’s wishes with respect be eligible if their competency to make decisions could to administration. The attending practitioner must be in be established, then they must jointly ask the SCENZ the same room or area as the person or in close proximity group for the name and contact details of a psychiatrist, to the person until the person dies, or arrange for another and obtain a third opinion from that psychiatrist on medical practitioner or attending nurse practitioner to be whether the person is competent (s. 15). so (s. 20).

END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021 109 Legal and other protections on whether its contents demonstrate satisfactory compliance with the Act. The Committee may compel the Health practitioners must not initiate discussion with a Registrar to investigate information which appears non- person that is in substance about AD, nor suggest AD compliant (s. 26). to the person unless the person requests information (s. 10). Eligible persons under the Act are able to withdraw The Act also makes provision for the nomination their request to receive AD at any time, and have the of an employee of the Ministry as Registrar. The Attending Medical Practitioner cease the process Registrar must establish and maintain a register in relation to the person. This does not prevent the recording approved forms, the Review Committee’s person from making a new request for AD at a later reports to the Registrar, and the Registrar’s reports to time (s. 21). Further, any provision that a person makes the Minister. The Registrar may receive and refer to the for AD in an advance directive or contract will be appropriate body, including the police, complaints about invalid, and welfare guardians have no power to make the appropriateness of the conduct of health practitioners decisions under the Act for the person for whom they under the Act (s. 27). are appointed (ss. 33-34). If at any stage the Attending Medical Practitioner suspects that the person is being subject to pressure or coercion, they must take no further action in the VAD process, and notify the Registrar (s. 24). The Act also clarifies that it does not affect the right of any person to receive nutrition or hydration nor their right to refuse treatment, nor the duty of a medical practitioner to alleviate suffering (s. 32). Further, the Act criminalises the wilful failure of a medical practitioner, nurse practitioner or psychiatrist to comply with the Act (s. 39).

Health practitioners’ participation in the AD process is voluntary, and health practitioners are under no obligation to assist a person with AD if they have a conscientious objection, though they must inform the person of this objection and tell the person they may obtain information on AD from an alternative medical practitioner. Employers must not discriminate against practitioners on the basis of either their willingness to provide assistance in relation to AD or on the basis of their non-participation on grounds of conscientious objection (ss. 8). The Act gives immunity from criminal liability to health practitioners for providing assistance with AD (s. 37).

The Act also provides for the safe disposal of AD medication, and gives legal protection to persons who, in good faith, assist a person who wishes to exercise the option of AD in the AD process (ss. 37-38).

Monitoring and oversight

The Registrar must be satisfied that the requisite processes have been complied with before administration can occur under the Act (s. 19(4)-(5)) Further, the Act makes provision for the appointment of an end-of-life Review Committee, consisting of a medical ethicist and two health practitioners, one of whom must be a medical practitioner who practises in the area of end-of-life care. The Committee reviews reports sent to it after a person has died pursuant to the Act’s administration procedures, and reports to the Registrar

110 END OF LIFE CHOICES BILL REVIEW - FEBRUARY 2021